Enforcmnt of consumrs collctiv intrsts by rgulatory agncis in th Nordic countris Klaus Viitann Sintsi a cura di Paolo Martinllo L articolo è ddicato all analisi di mzzi strumnti di attuazion (nforcmnt) dgli intrssi collttivi di consumatori ni pasi scandinavi. Nl sistma scandinavo, l qustioni attinnti all attuazion dll lggi di tutla di consumatori all accsso alla giustizia sono stat affrontat, in particolar, attravrso spciali autorità pubblich (Consumr Ombudsman, con compiti di controllo dl mrcato sull uso di clausol contrattuali abusiv), frqunt ricorso ad azioni prvntiv, Tribunali spciali (Markt Court ovvro Markt Council) comptnti in matria di intrssi collttivi di consumatori, azioni collttiv risarcitori (group action for compnsation). Spsso la protzion dgli intrssi collttivi di consumatori mira a prvnir danni conomici alla salut causati da pratich commrciali slali, dall uso di clausol abusiv o da prodotti insicuri. Tuttavia, l attività di controllo di intrvnto prvntivo si rivla infficac quando, in consgunza di comportamnti illciti, si vrificano danni dlla stssa natura a un ampio gruppo di consumatori. Uno di mzzi più promttnti pr frontggiar l controvrsi di massa è l azion di gruppo risarcitoria. A sguito di numros iniziativ lgislativ ngli anni rcnti, qusto tipo di azion è al momnto un tma cntral ni pasi scandinavi 1. Controllo dl mrcato dll clausol contrattuali standardizzat Il compito dl Consumr Ombudsman è di controllar l pratich commrciali i contratti standardizzati, ma anch di promuovr in gnral gli intrssi di consumatori. Nl sistma scandinavo è frqunt l uso di azioni prvntiv nll attività di controllo dl mrcato, ch si articola in parri prvntivi, lin guida pr l imprs ngoziazioni con l organizzazioni di profssionisti sull clausol di contratti standardizzati. Lo scopo è di prvnir l violazioni dlla lgg informando l imprs ngoziando con ss. I Consumr Ombudsman hanno l obbligo di convincr l imprsa ad abbandonar l pratich commrciali slali o l uso di condizioni contrattuali abusiv 1 Su qusto argomnto, rinviamo anch a P. Martinllo, La class action, in qusta rivista n. 1/2006, p. 90. Klaus Viitann LL.D, Docnt in Commrcial Law Univrsity of Hlsinki Finland Paolo Martinllo Altroconsumo Associazion Indipndnt di Consumatori numro 2/2007 Mrcato 79
in modo volontario. Tali mtodi di intrvnto si sono mostrati strmamnt fficaci nl corso dgli anni. Qualora tali procdur di prsuasion dovssro fallir, il Consumr Ombudsman può avviar azioni lgali contro l imprsa davanti a un autorità giudiziaria spcializzata (Markt Court o Council), ch può imporr provvdimnti inibitori (injunction ordr), mssaggi corrttivi (corrctiv advrtising) sanzioni conomich (markt disruption f). 80 Azioni collttiv risarcitori L azioni di gruppo risarcitori possono ssr dfinit com un azion giudiziaria nlla qual colui ch agisc (plaintiff), sia sso un mmbro o mno di un dtrminato gruppo, introduc una causa a bnficio di un gruppo dtrminato di soggtti snza l sprssa autorizzazion di suoi mmbri il risultato dl giudizio è vincolant sia a favor sia contro tutti i mmbri dl gruppo. Nlla maggior part di pasi uropi, la possibilità di introdurr azioni di gruppo risarcitori non sist ancora, ciò si è rivlato un problma, in quanto qusto tipo di azioni giudiziari potrbb rivlarsi strmamnt util nlla soluzion di controvrsi di massa di consumatori. Tuttavia, i pasi scandinavi smbrano ora orintati a introdurr nuov form di tutla di consumatori, rndndo possibili azioni di gruppo risarcitori nll controvrsi di massa di consumatori. In Finlandia Svzia propost di lgg in mrito sono stat prsntat sin dall inizio dgli anni '90. Il Govrno svds ha prsntato una proposta al Parlamnto (Group Action Act), ch è stata adottata nl maggio dl 2002. La nuova lgg è ntrata in vigor il 1 gnnaio 2003. In Finlandia la proposta di lgg è stata tmporanamnt frmata nl 1999 pr ragioni politich, ma il lavoro prparatorio è continuato nlla dcad succssiva il Govrno ha prsntato una proposta sull azioni di gruppo nl sttmbr 2006. In Norvgia, il nuovo codic di procdura civil ntrrà in vigor nl 2007 prvd azioni di gruppo risarcitori. In Danimarca, un rapporto è stato pubblicato nl dicmbr 2005 suggrisc ch il codic di procdura civil dans sia modificato in modo tal da consntir l azioni di gruppo risarcitori nl prossimo futuro. L ambito di applicazion dll azioni di gruppo ni pasi scandinavi è nlla maggior part di casi gnral, così da rndr qust azioni possibili in prsnza dll condizioni prvist (fatti simili o idntici, opportunità di trattar l controvrsi in un unico procsso). Solo in Finlandia, il modllo proposto prvd un applicazion limitata all controvrsi di massa di consumatori ai danni ambintali. Circa i soggtti lgittimati a introdurr l azioni di gruppo, i modlli dans, norvgs svds prvdono ch il plaintiff possa ssr sia un mmbro dl gruppo, sia un organizzazion ch protgg gli intrssi di un gruppo di cittadini, sia un autorità pubblica, com il Consumr Ombudsman. Il modllo finlands, invc, prvd sclusivamnt la lgittimazion dll autorità pubblica (Finnish Consumr Ombudsman). numro 2/2007 Mrcato
Circa la composizion dl gruppo, i consgunti fftti dlla dcision sui suoi componnti, in Svzia Finlandia è prvista solo l opzion opt-in (solo i soggtti ch hanno adrito al gruppo attravrso una rgistrazion saranno coprti dalla sntnza). Qusto è anch il principio gnral in Norvgia Danimarca. Tuttavia, in qusti ultimi pasi è prvisto anch un possibil mccanismo di opt-out (in bas al qual la dcision sarà vincolant a favor o contro tutti i mmbri dl gruppo, indipndntmnt da una loro rgistrazion) qualora azioni giudiziari individuali non siano snsat, in particolar a causa dll intrss conomico individual strmamnt limitato. Qusta possibilità incrmnta l utilità dll azioni di gruppo, spcialmnt nll controvrsi di massa di consumatori. Nll azioni di gruppo sono consntiti gli stssi rimdi prvisti dal Codic Civil: risarcimnto di danni, riduzion dl przzo. Una qustion ssnzial nl valutar la portata pratica dll azioni di gruppo risarcitori è com ss vngono finanziat. L azioni di gruppo comportano costi molto più alti di casi individuali colui ch agisc assum un rilvant rischio finanziario. Da qusto punto di vista, l lggi o propost di lgg sull azioni di gruppo ni pasi scandinavi non appaiono pr nulla soddisfacnti, in quanto si basano sulla cosiddtta nglish rul: il prdnt dv pagar l su sps qull dll altra part. Il rischio di lvat sps lgali è stata la principal ragion dl limitato numro di azioni di gruppo risarcitori in Svzia (solo 6 dal 2003). Il lgislator può utilizzar diffrnti mtodi pr ridurr il costo finanziario nll azioni di gruppo, quali la no-cost rul, ovvro la rgola dl contingncy f o conditional f-paymnt systms (patto quota lit), dirtti a trasfrir il rischio finanziario dall parti ai difnsori. Qusti sistmi sono consntiti in lina di principio ni pasi scandinavi, ma scarsamnt utilizzati in pratica. Un altra possibilità è qulla di far ricorso a diffrnti sistmi di finanziamnto attravrso fondi pubblici o privati, alimntati sia dallo Stato sia da una prcntual di fondi ricavati da altr azioni di gruppo (un modllo di qusto tipo è già utilizzato in Canada). Il sistma scandinavo: un succsso? I punti di forza dl sistma scandinavo in matria di nforcmnt dgli intrssi collttivi di consumatori sono stati l attnzion posta all qustioni rlativ all accsso alla giustizia pr la tutla di diritti sia collttivi sia individuali di consumatori, l sistnza di autorità indipndnti di controllo (Consumr Ombudsman) di tribunali spciali (Markt Court), l ampio ricorso ad azioni prvntiv. L intnsa attività lgislativa in matria di azioni di gruppo risarcitori smbra ch stia lntamnt modificando il quadro uropo. I pasi scandinavi sono stati piuttosto attivi in qusto ambito. Tuttavia, il principal ostacolo all uso dll azioni di gruppo rsta il loro costo, problma ch non smbra risolto dall attribuzion dlla lgittimazion ad agir ad autorità pubblich (Consumr Ombudsman), ch pur oprano con risors limitat. S l azioni di gruppo risarcitori saranno possibili in alcuni Stati mmbri, ma non in altri, potranno sorgr problmi di scuzion dll dcisioni nll azioni di gruppo transfrontalir. numro 2/2007 Mrcato 81
Introduction Th Nordic countris startd to build thir national systms of consumr protction from th bginning of 1970s. In spit of th fact, that thr ar diffrncs btwn ths systms, thr ar also clar and fundamntal similaritis, which justify us to spak about th Nordic modl of consumr protction. Th most typical faturs for th Nordic systm of consumr protction, in th ara of substantiv law, ar th following ons: rgulation of markting and unfair contract trms by gnral clauss which hav a vry wid scop of application; possibility to adjust unfair contract trms - including th pric of th good or srvic - in alrady concludd contracts; quit comprhnsiv us of mandatory contract law provisions. Prhaps th biggst diffrnc btwn Finland and th othr Nordic countris may b found in th fild of substantiv law. In Finland almost all rlvant rgulation has bn codifid into on singl act, to th Consumr Protction Act 1978 instad of adapting svral sparat acts as in othr Nordic countris. In nforcmnt/accss to justic-qustions th typical faturs of th Nordic systm ar th following ons: spcial stat authoritis, Consumr Ombudsman, hav bn stablishd for th suprvision of markting and unfair contract trms; 2 frqunt us of prvntiv actions in th suprvision of markting and standard contract trms; spcial courts - oftn calld as th Markt Court or Council - ar usd in cass which concrn consumrs' collctiv intrsts; 3 consumr organisations hav always had a rathr limitd rol, spcially in th nforcmnt; public out-of-court bodis for th sttlmnt of individual consumr disputs ar widly usd instad of privat bodis. Th protction of consumrs` individual rights is in most Nordic countris basd on two-stair systm of out-of-court procdurs for th sttlmnt of individual consumr disputs. In Finland and Swdn thr xists consumr advisrs in th municipal lvl and in Norway consumr cntrs in th district lvl. Thir comptnc is limitd to advic and mdiation. Bsids that, all four countris hav a spcial cntralisd body - oftn calld as th Consumr Complaint Board - with a gnral jurisdiction to sttl all kind of consumr-to-businss disputs. Thir dcisions ar, howvr, only rcommndations, xcpt in Norway; 4 82 2 For mor dtails, s ch. Th Nordic Consumr Ombudsman of this articl. 3 For mor dtails, s ch. Th Nordic Markt Courts of this articl. 4 For mor dtails of th Nordic Public Complaint Boards, s Viitann 1996. numro 2/2007 Mrcato
small claims procdur in ordinary courts. Th nw Norwgian Act on Civil Procdur (tvistlovn), which will ntr into forc in yar 2007, stablishs a sparat small claims procdur for disputs, whr th montary intrst do not xcd a crtain sum of mony. In Dnmark, whr a major rform of Danish court systm and procdural ruls was adoptd in summr 2006, small claims procdur in minor disputs will b availabl from th bginning of yar 2008. Also in Swdn a sparat small claims procdur was availabl btwn th yars 1973-1987; 5 group action for compnsation. Th Swdish Group Action Act ntrd into forc in 2003. In Norway group action for compnsation will b possibl from th bginning of yar 2007. In Dnmark and Finland thr xists proposals for th adoption of this court action; 6 th minimal rol of criminal law in th nforcmnt. In spit of th fact, that it is possibl to impos criminal sanctions to thos prsons who hav intntionally or by nglignc infringd th ruls concrning markting, ths sanctions ar in practic usd vry sldom. Accss to justic-qustions ar oftn dividd into two main groups: to th protction of consumrs' collctiv intrsts and to th protction of consumrs' individual rights. In th protction of consumrs collctiv intrsts, it is qustion of protcting consumrs as a group. Th group may b consistd of all consumrs, or it may b mor limitd. Oftn th aim in th protction of consumrs collctiv intrsts is to prvnt conomic and physical damags causd by unfair markting practics, unfair standard contract trms, or unsaf or poor-quality products. This prvntion taks usually plac by suprvision which is carrid out by stat authoritis and/or diffrnt kinds of trad and consumr organisations. Howvr, suprvision oftn fails on th consqunc that illgal activitis caus similar kinds of damags to a larg group of consumrs. In ths kind of problms othr mans ar ndd in ordr to protct consumrs collctiv intrsts. On of most promising man to protct consumrs intrsts in mass consumr disputs is group action for compnsation. Th purpos of this articl is to shortly prsnt, how consumrs collctiv intrsts ar protctd in four Nordic countris: Dnmark, Finland, Norway and Swdn. In chaptr 2 th Nordic systm of suprvision of markting and standard contract trms will b prsntd. In chaptr 3 th focus will b on collctiv actions for compnsation in th Nordic countris, mainly on th group action for compnsation. Du to th activ law drafting during th rcnt yars in ths countris, this action is at this momnt a vry topical issu in th Nordic countris. 5 For mor dtails of small claims procdur in Norway, s Ot.prp.nr. 51, pp. 193-202 and NOU 2001:32, pp. 317-344. For Dnmark, s Btænkning nr. 1436, pp. 425-462, and for Swdn, s Dmulnar, pp. 53-83. 6 For mor dtails, s ch. Th qustion of lgal xpnss of this articl. numro 2/2007 Mrcato 83
Suprvision of Markting and Standard Contract Trms Th Nordic Consumr Ombudsman Gnral Th nforcmnt of consumrs collctiv intrsts in th Nordic countris is takn car by a spcial stat authority, calld as th Consumr Ombudsman. His task is to suprvis markting practics and th us of standard contract trms, but also to promot consumr intrsts in gnral. Ths authoritis wr stablishd in all four countris btwn yars 1973-1978. Th activitis of th Consumr Ombudsman ar in th many Nordic countris connctd to th activitis th National Consumr Agncy. In Finland and Swdn th Consumr Ombudsman is th had of th National Consumr Agncy. Th most rlvant acts which rgulat th activitis of th Consumr Ombudsman, ar th following ons: in Dnmark Markdsføringslovn 2005 (hrinaftr th Danish Markting Act), in Finland Kuluttajansuojalaki 1978 (hrinaftr th Finnish Consumr Protction Act), in Norway Markdsføringslovn 1972 (hrinaftr th Norwgian Markting Act) and in Swdn Marknadsföringlag 1995 (hrinaftr th Swdish Markting Act). Espcially thos acts, which hav ntrd into forc alrady in 1970s, hav bn amndd svral tims latr on. Th English translations of ths acts ar availabl in th hom pags of th Nordic national consumr agncis or Ombudsman. 7 Prvntiv actions An xtrmly typical fatur for th Nordic systm of consumr protction is th frqunt us of prvntiv actions in th suprvision of markting and standard contract trms: advanc opinions, markting guidlins and ngotiations with th trad organisations concrning standard contract trms. Th aim is to prvnt any infringmnts of law by informing th tradrs and by ngotiating with thm. Oftn ths prvntiv actions ar not basd on th law, but hav bn cratd in practic during th yars. Advanc opinion is an opportunity for an individual advrtisr to chck bforhand whthr a plannd markting campaign is infringing th markting law or not. Th Danish Markting Act contains a spcial provision on this topic. On rqust, th Danish Consumr Ombudsman will giv a statmnt rgarding his viw of th lawfulnss of th plannd markting arrangmnt. Onc th Consumr Ombudsman has shown grn light, h cannot intrfr on his own initiativ with an arrangmnt covrd by th advanc opinion and implmntd within a rasonabl tim of its dlivry. 8 In th othr Nordic countris th systm is mor informal. This mans, 84 7 For th Danish National Consumr Agncy, s http:// www.forbrug.dk, for th Finnish National Consumr Agncy, s http://www.kuluttajavirasto.fi, for th Norwgian Consumr Ombudsman, s http://www. forbrukrombudt.no and for th Swdish National Consumr Agncy, s http://www.konsumntvrkt.s. 8 S th Danish Markting Act, art. 25. numro 2/2007 Mrcato
that in principl an advanc opinion do not bind th Consumr Ombudsman. Howvr, in practic this has nvr bn a problm. For xampl, th Finnish Consumr Ombudsman gav in yar 2004 altogthr 107 advanc opinions. 9 Th Nordic Consumr Ombudsman hav issud during th yars markting guidlins in svral sctors of markting. Ths guidlins ar mainly basd on th xisting cas law and thir purpos is to inform tradrs which kind of markting practics ar infringing th law. For xampl, in yar 2004 th Finnish Consumr Ombudsman issud thr nw guidlins: Markting rror situations; Minors, markting and purchass and Changs in contract trms. In addition th Finnish National Consumr Agncy and th National Board of Education prpard principls concrning markting and sponsorship in schools. Th third prvntiv mthod usd by th Nordic Consumr Ombudsman ar ngotiations with trad organisations concrning standard contract trms in svral branchs of businss. 10 In Finland a good xampl of ths ngotiatd standard contract trms ar th Packag Travl Contract Trms, which ar usd in practic by almost all Finnish travl agncis. Th rsult of ths ngotiations do not ncssarily man that th Consumr Ombudsman approvs all th contract trms usd in th ngotiatd standard contract trms, but h approvs most of thm. Thr ar many bnfits connctd to ths ngotiations. From tradrs point of viw th probability that Consumr Ombudsman would tak actions against ngotiatd contract trms is in practic quit minimal. From consumrs point of viw on bnfit is that consumr law prohibits only th us of unfair contract trms. By ths ngotiations it is possibl to add to th standard contracts nw trms which improv consumrs contractual position compard to th arlir usd standard contract trms, or vn compard to th mandatory consumr contract law provisions. This fact clarly shows th task of th Consumr Ombudsman to promot consumrs collctiv intrsts, and not only to suprvis, whthr th lgislation in forc is violatd or not. Rprssiv actions In cas infringmnts of law ar obsrvd, th suprvisory systms in th Nordic countris ar still givn priority to th us of soft law-mthods. Th Consumr Ombudsman hav an obligation to prsuad th tradr in qustion to abandon unfair markting practics or th us of unfair contract trms in a voluntarily way. 11 Th tradr is askd to sign a writtn ngagmnt in which h promiss not to continu unfair markting practic or th us of unfair contract trms. Th us of soft law mthods has shown to b xtrmly ffctiv during th yars. Th grat majority of clar infringmnts of law ar solvd by this way without nd to us any lgal sanctions. Evn in mor principal cass tradrs oftn prfr to choos an amicabl sttlmnt instad of ltting th Consumr Ombudsman to tak th cas to th court. 9 S Consumr Agncy/Ombudsman. Annual rport 2004, p. 22. 10 S,.g., Wilhlmsson 1994 s. 34. 11 S,.g., th Finnish Consumr Agncy Act (1056/1998), art.5. numro 2/2007 Mrcato 85
In cass whr prsuasion fails, hard law-sanctions ar availabl. Th Consumr Ombudsman may tak lgal action against th tradr in a spcial court, which in most Nordic countris is calld as th Markt Court or Council. Howvr, in clar cass or in cass of minor importanc, th Consumr Ombudsman is ntitld to impos by himslf an injunction ordr togthr with conditional fins. In cas a tradr rsists, th systms in th Nordic countris diffr from ach othrs. In Dnmark, Finland and Swdn, th injunction bcoms void if th tradr rsists in a crtain tim limit and th Consumr Ombudsman has to tak th cas to th court. In Norway th dcision of th Consumr Ombudsman has a mor strongr lgal position. In Norway, th tradr who is not satisfid with th dcision mad by th Consumr Ombudsman, has to appal to a court in cas h wants to rvrs it. 12 In all four countris th Consumr Ombudsman may impos a tmporary injunction ordr in urgnt cass. It is valid until th courts starts to try th cas. Th Nordic Markt Courts Gnral Th final dcision-making powr whn assssing whthr markting practic or standard contract trms may b rgardd as unfair or not, has in th Nordic countris bn givn to spcial courts. In Finland and Swdn ths courts ar calld as th Markt Courts. Thir jurisdiction is limitd to th following aras of law: consumr law (only markting and standard contract trms), unfair comptition and comptition law. In Norway th similar court is calld as th Markt Council. All ths thr courts wr stablishd in 1970s. In Dnmark th comptnt court is, howvr, th Maritim and Commrcial Court of Copnhagn, which was stablishd alrady in 1862. It is a spcial court for commrcial disputs, including markting and unfair contract trms-cass. All courts consists of profssional judgs, and xprt mmbrs, who in practic may b also rprsntativs of diffrnt intrsts groups. For xampl, in th main haring th Finnish Markt Court normally consists of thr profssional judgs and from on to thr xprt mmbrs, vrybody with an individual right to vot. 13 Right of action In consumr mattrs a court procdur in th Nordic Markt Courts is initiatd by a ptition of th Consumr Ombudsman. In Finland and in Swdn th right of action has bn formally rstrictd to th Consumr Ombudsman only. Howvr, if th Consumr Ombudsman rfuss to fil a ptition with th court for th haring of cass concrning advrtising masurs or contract trms, th ptition may b fild by a rgistrd association looking aftr th intrsts of tradrs, 86 numro 2/2007 12 S th Norwgian Markting Act, art. 14. 13 S th Finnish Markt Court Act (1527/2001), art.9.2. Mrcato
consumrs or mploys. In Norway also individual tradrs or consumrs who hav bn affctd by th markting practic, hav a scondary right of action, and may submit th cas to th court. Th situation is most libral in Dnmark, whr anyon with a lgal intrst, may bring a cas to th court. 14 In practic comptitors oftn tak lgal actions against ach othrs in th Nordic Markt Courts, but on th basis of unfair comptition law, which provid to thm mor than only a scondary right of action. Howvr, individual consumrs, or vn consumr organisations, hav not shown intrst to us thir right of action in th Nordic countris. For xampl, in Finland in spit of th fact that th scondary right to institut procding in th Markt Court has bn availabl sinc yar 1978, it has nvr bn usd. Th right to tak lgal action against tradrs usd to b also in th Nordic countris rsrvd only to th consumr authoritis and consumr/trad organisations of th sam country whr th dfndant was domicild. Du to th dirctiv 98/27/EC on injunctions for th protction of consumrs intrsts 15, so calld injunction dirctiv, th lgislation was amndd also in th Nordic countris so, that in cross-bordr mattrs a cas may also b initiatd by ptition of a forign authority or organisation. Howvr, at last in Finland, so far thr hav bn no cass in th Finnish Markt Court which would hav bn initiatd by forign organisations or authoritis. Nithr has th Finnish Consumr Ombudsman usd th bnfits of th injunction dirctiv 98/27/EY in othr Mmbr Stats. It is mor than probabl, that th situation is similar in othr Nordic countris. Howvr, it might b worth of mntioning in this contxt, that for xampl, th Finnish Markt Court solvd its first cas concrning cross-bordr markting alrady in yar 1987. In that cas a big multinational company was markting its products via satllit tlvision from Britain to Finland. Th Finnish Consumr Ombudsman took lgal action in th Finnish Markt Court against th Finnish subsidiary company of th multinational company in qustion. Th court statd, that th Finnish Consumr Protction Act was applicabl in th cas du to th fact that markting was intntionally targtd also to th Finnish consumrs. Prhaps th most intrsting point in this cas was th fact, th injunction ordr with a conditional fin was imposd to th Finnish subsidiary company. 16 Sanctions In cas th Nordic Markt Court considrs a markting practic as unfair, th following sanctions ar availabl: injunction ordr. Th purpos of this ordr is to prohibit th tradr to carry on his illgal activitis. In most Nordic countris an injunction ordr is strngthn with a conditional fin. Conditional fin is a fin which th tradr has to pay in cas h dos not comply with th court ordr. Howvr, in Dn- 14 S th Danish Markting Act, art. 27. 15 S OJ N:o L 166, 11.6.1998. For mor dtails of this dirctiv, s,.g., Côté, pp. 18-28. 16 S th cas numbr 1987:13 of Finnish Markt Court. numro 2/2007 Mrcato 87
mark criminal sanctions ar usd instad of conditional fins. Non-obsrvanc of an injunction imposd by th court, or vn imposd by th Danish Consumr Ombudsman in clar cass, is punishabl by fin or imprisonmnt of up to four months; 17 corrctiv advrtising. This mans an obligation to corrct, normally by a totally nw advrtismnt, th information givn in unfair markting. 18 In practic th significanc of corrctiv advrtising has bn rathr small. Th rason for this is th simpl fact, that markting campaigns hav in practic ndd a long ago bfor th judgmnt is givn; markt disruption f. In Swdn a spcial sanction, calld as markt disruption f, has bn availabl sinc yar 1996. A tradr may b ordrd to pay a markt disruption f, if h or a prson acting on his bhalf intntionally or by carlssnss violats th substantiv ruls of th Swdish Markt Act. Howvr, it is not possibl to impos a f in cas a tradr has infringd only th gnral claus in articl 4. Th ordrd f has to b at last SEK 5.000 and it may not xcd SEK 5.000.000 (approximatly uro 500.000) and tn prcnt of th tradr s annual turnovr. Markt disruption f is an altrnativ sanction to an injunction ordr with conditional fins, and th intntion was, that it would b usd only in srious cass. In most cass th court should still impos only an injunction ordr togthr with conditional fins. 19 Criminal sanctions In Swdn th possibility to us criminal sanctions was abolishd whn th markt disruption f was adoptd. Howvr, in othr Nordic countris criminal sanctions ar still in principl availabl, but th criminal procdur taks plac in gnral courts, which also impos th sanctions. In practic criminal sanctions hav bn usd vry sldom. For xampl, in Finland th Consumr Ombudsman trid to us criminal sanctions against unscrupulous tradrs, but th criminal chargs wr dismissd or th punishmnts wr so low, that thr was no sns to bring nw criminal cass to th courts. 20 Compnsation of damags Nithr dos th Nordic Markt Courts hav jurisdiction to ordr compnsation of damags in individual cass. This mans that individual consumrs, who want to claim compnsation for thir conomic damags causd by unfair markting practics or th us of unfair standard contract trms, hav to tak lgal action in a gnral court in cas out-of-court procdurs turn to b uslss. Du to th risk of high costs of litigation, this possibility is at this momnt oftn mor thortical than practical. Howvr, th nw Nordic group actions for compnsation, 88 17 S th Danish Markting Act, art. 30.1. 18 S,.g., th Finnish Consumr Protction Act, ch. 2, art. 9. 19 S th Swdish Markting Act, art. 22-25 and SOU 1993:59, pp. 410-424. 20 S,.g., Wilhlmsson 1996, p. 149. numro 2/2007 Mrcato
whr th Consumr Ombudsman may act as plaintiffs on bhalf of a group of consumrs, may chang this pattrn in th futur. Right to appal Right to appal diffrs btwn th Nordic countris. In Swdn th judgmnt of th Markt Court is final. No on has a right to appal to th Court of Appal or dirctly to th Suprm Court. This was also th situation in Finland until th yar 2002. Howvr, sinc yar 2002 th partis hav had right to appal to th Suprm Court providd that th Suprm Court grants a lav to appal. 21 In Dnmark th dcisions of th Maritim and Commrcial Court may b appald to th Suprm Court. Also in Norway th partis may appal to a gnral court. In Finland th partis hav bn quit activ to us thir nw right to appal. In fact, it has bn usd in most cass and th Suprm Court has bn so far quit libral whn granting its lav to appal. In its final dcisions, th Suprm Court has confirmd th judgmnt mad by th Markt Court. Th changs hav bn minor ons. 22 Lgal xpnss In consumr law cass th no-cost rul is applid in th Markt Court in all Nordic countris. This mans that both partis hav to carry thir own lgal xpnss in spit of th outcom of th cas. In spit of th no-cost rul, th lack of sufficint rsourcs has probabl bn on rason for th unwillingnss of consumr organisations to initiat cass in th Nordic Markt Courts. 23 Collctiv actions for compnsation Gnral In modrn socity it is not uncommon that many consumrs suffr conomic damags du to problms which ar mor or lss similar as othr consumrs. Th rason for this is th incrasing mass production of consumr goods and th mass supply of consumr srvics,.g., packag travls and insurancs. Howvr, th disput sttlmnt systms in most wstrn countris ar at prsnt unabl to solv ths mass consumr disputs. Th traditional civil procdur is still only aimd at solving disputs btwn individual litigants. 24 Howvr, th sam problm may 21 S th Finnish Act on Crtain Procdings bfor th Markt Court (1528/2001), art. 21. 22 S,.g., Bärlund, pp. 424-427. 23 S,.g., Viitann 1999, p. 552. 24 S,.g., Capplltti 1989, pp. 268-287. numro 2/2007 Mrcato 89
also b sn in most out-of-court procdurs which hav bn cratd during th last fw dcads. Thy ar forclss in front of th mass consumr disputs. In th discussion concrning th sttlmnt of mass consumr disputs most attntion ovr th last fw dcads has without doubt bn paid to group action for compnsation. Group action for compnsation can b brifly dfind as a court action in which a plaintiff - ithr a mmbr or a non-mmbr of a spcifid group - brings a suit for th bnfit of a spcifid group without th xprss prmission of th group mmbrs, and this rsults in a judgmnt that is binding both for and against all th mmbrs of th group. 25 Basd on who th plaintiff is group actions can b dividd into thr typs. Firstly, w may idntify a propr class action, whr th plaintiff is a mmbr of th group and sks,.g., rdrss also for his own damags which h has suffrd. Scond possibility is that th plaintiff is not a mmbr of th group, but a public authority rsponsibl for th suprvision of collctiv rights of a crtain group. This kinds of actions has bn calld as public action. Thirdly, thr ar actions whr th plaintiff is a privat group,.g., a consumr organisation, which has rcivd lgal standing. Ths actions has bn calld as actions by organizations. 26 Th sttlmnt of mass consumr disputs is in principl possibl also in th traditional civil procdur. If thr ar svral plaintiffs against th sam dfndant, th court may join ths actions in on procding if that contributs to a quickr and propr trial of th cas. 27 This is calld as consolidation of actions. In spit of fact that all ths cass ar handld in th sam trial, it is basically qustion of svral individual claims which for conomic rasons hav bn consolidatd. This mans also that all th mmbrs of th group who wants to hav compnsation must b involvd in th trial as plaintiffs. In cas a consumr organisation or anothr third party is rprsnting th mmbrs of a group, it must hav a proxy from ach of thm. In consolidatd cass th sam principl is applid as in most othr countris concrning lgal xpnss. It is th losr who has to pay his own trial costs and thos of th othr party. 28 This mans that all th mmbrs of th group who ar plaintiffs in th trial hav to bar thir part of th lgal xpnss if th cas is lost. Th scond altrnativ in th sttlmnt of mass consumr disputs is so calld pilot cas. This mans that only on cas is takn to a court and in th othr cass partis comply with th court s judgmnt mad in th pilot cas. In most pilot cass this happns without any prior agrmnt btwn th plaintiff and dfndant. In Finland th Consumr Ombudsman can assist consumrs in a court in an individual disput if a cas has significanc for consumrs gnral intrsts and a prliminary ruling is dsird. Th Consumr Ombudsman can also dcid that th National Consumr Agncy will pay for consumr s all lgal xpnss, including thos which h has to pay to th othr party if th cas is lost. 29 90 25 S,.g., Lindblom 1989, p. 19. 26 S,.g., Bourgoigni, pp. v-vi. 27 S,.g., th Finnish Cod of Procdur, ch.18, art. 1-8. 28 In Finland, s th Finnish Cod of Procdur, ch. 21, art 1. 29 S th Finnish Consumr Agncy Act (1056/1998), art. 9. numro 2/2007 Mrcato
In practic th Finnish Consumr Ombudsman maks from 2 to 6 dcisions to provid aid of this kind ach yar. For xampl, at this momnt, th Finnish Consumr Ombudsman is assisting a consumr in th Suprm Court in a cas whr th consumr had bought consumr goods from USA via intrnt and paid by using his VISA-crdit card. H nvr rcivd th ordrd goods, but got anyway th bill from VISA. H rfusd to pay on th ground of connctd lndr liability. Now th Finnish Suprm Court is dciding, whthr th connctd lndr liability, as implmntd in th Finnish Consumr Protction Act, ch. 7, sts obligations also to crdit card companis such as VISA. Th main problm in th us of pilot cass is that from procdural law viwpoint th court s judgmnt do not diffr in any way from judgmnts givn in normal individual cass. It dos not hav rs judicata-ffct in othr similar cass. This mans that th dfndant who has lost his cas, do not hav any lgal obligation to comply with th judgmnt in othr idntical disputs. Th ffcts of pilot cass ar only basd on dfndant s far that a prliminary ruling may ncourag othr consumrs to tak lgal actions in similar cass. Crating a prcdnt is only hlpful in situations whr a company is willing to comply with th ruling in all othr cass, too. In Finland pilot cass hav shown to b usful in som situations, but thr ar also a lot of xampls in which tradrs hav bn unwilling to comply with dcisions mad in pilot cass. In th lattr cass tim limits on claims hav causd problms to thos consumrs who hav waitd for th rsults of a pilot cas. If a pilot cas is undr considration for yars, othr claims with a similar basis can laps. Prvnting this may rquir individual masurs on th part of ach consumr, which conflict with th main ida of a pilot cas. In most Europan countris th possibility of bringing an group action for compnsation do not yt xist. Group action for compnsation - lik for xampl small claims courts - has bn much mor popular in common law countris outsid th Europ. Th most wll-know xampls may b found in th Unitd Stats, Canada and Australia. 30 Th lack of group action for compnsation in Europ has bn a problm, bcaus it is xprssly this typ of court action which could b vry usful in th sttlmnt of mass consumr disputs. Group action for compnsation is an important wapon whn making justic mor accssibl in mass disputs. Nordic group actions for compnsation Howvr, now it sms that th Nordic countris may onc again show xampl in th fild of consumr protction by adopting nw procdural lgislation which maks group action for compnsation possibl in mass consumr disputs. 30 S,.g., Lindblom 2000, pp. 427-439, COM(93) 576, pp. 63-64, Eisnstin, pp. 30-53, L Hurux; pp. 445-461 and Harland, pp. 126-139. numro 2/2007 Mrcato 91
In Finland and Swdn law drafting procdur for group action for compnsation, startd in th bginning of 1990s. In Swdn this procdur ld to th Govrnmnt s Proposal to Parliamnt concrning Group Action Act, which was adoptd by th Parliamnt in May 2002. Th nw act ntrd into forc January 1, 2003. 31 In Finland th law drafting stoppd in yar 1999 for political rasons tmporarily, aftr two committ rports. Th prparation work continud in this dcad and in March 2006 a nw committ rport was publishd. It containd a proposal on group action for compnsation, which scop of application was, howvr, much mor rstrictd whn compard to th othr Nordic countris. Govrnmnt s proposal on group action was givn to th Parliamnt in Sptmbr 2006. 32 Howvr, it is good to rmmbr, that group action for compnsation has bn a vry snsitiv political qustion in Finland sinc 1995, whn th first committ rport was publishd. Svral proposals hav bn mad during th yars without any furthr lgislativ progrss. Th rsistanc from th businss lobby organisations has bn vry hard and succssful. In Norway, th nw Act on Civil Procdur, its chaptr 35, which will ntr into forc in yar 2007, will introduc group action for compnsation to th Norwgian procdural systm. In Dnmark a committ rport was publishd in Dcmbr 2005. It suggstd that th Danish Act on Procdur should b amndd in a way which would mak group action for compnsation possibl also in Dnmark in th nar futur. 33 Th scop of application would in most Nordic group actions b gnral. This mans that group action will b possibl in all kinds of disputs on th condition that thy fulfil th gnral rquirmnts of group actions,.g., it is qustion of disputs whr th facts ar idntical or at last idntical to ach othrs, and it is snsibl to handl ths disputs togthr in on trial. Howvr, in this rspct th Finnish proposal diffrs clarly from th othr Nordic countris. According to th nwst committ rport, th scop of application was plannd to b rstrictd to two typs of disputs: to mass consumr disputs and to nvironmntal damag issus. Th govrnmnt s proposal is vn mor strict: group action will b possibl in mass consumr disputs only. 34 Thr is also a clar diffrnc btwn othr Nordic countris and Finland concrning th qustion who may act as a plaintiff in a group action for compnsation. In othr Nordic countris all prvious mntiond typs of group action ar possibl. So, in Dnmark, Norway and Swdn th plaintiff may b a mmbr of th group (class action), an organisation, who is protcting th intrsts of a crtain group of citizns (action by organisation), or stat authority, as th Consumr Ombudsman (public action). 35 In Finland only a public action would b possibl. Th Finnish Consumr Ombudsman would hav a right to tak lgal action on bhalf of a spcifid group 92 31 S Prop. 2001/02:107 and th Group Action Act (SFS 2002:599). 32 S OLJ 4/2006 and HE 154/2006. 33 S Btænkning nr. 1468. 34 S OLJ 4/2006 s. 53-56 and HE 154/2006, pp. 16-17. 35 S,.g., th Norwgian Act on Civil Procdur, ch. 35, art.3. numro 2/2007 Mrcato
of consumrs. This mans that consumr organisations or individual consumrs would not hav vn a scondary right of action in cass whr th Consumr Ombudsman hav dcidd not to start lgal procdings. According to th latst committ rport, in nvironmntal damag issus th nvironmntal organisations would hav had a right of action, but only a scondary on. 36 In group actions judgmnts hav lgal ffct for all mmbrs of th group, although thy ar not partis to th cas. Howvr, thr ar in principl two opposit ways how th group may b formd. Firstly, all prsons who fill crtain rquirmnts will bcom automatically mmbrs of th group. Thos, who do not want to b mmbrs of th group hav to us thir right to opt out. Th opposit altrnativ is th opt in -modl. In this altrnativ only thos prsons, who hav joind th group by rgistration, will b mmbrs of th group and will b covrd by th judgmnt. In Swdn and Finland only opt in-altrnativ is availabl. This is also th main rul in Norway and Dnmark. Howvr, in ths two last-mntiond countris also opt out-altrnativ is possibl in mass disputs, whr individual court actions ar not snsibl,.g., du to th fact that th montary intrst of individual cass is so low. This possibility incrass usfulnss of group action, spcially in mass consumr disputs. Howvr, in Dnmark th opt out -altrnativ would b availabl in public actions only. 37 Othrwis th procdur to b usd would primarily corrspond to ordinary lgal procdur in civil cass in all four countris. Also th sam civil law rmdis ar availabl than in normal traditional individual cass,.g, compnsation of damags, pric rduction. In all Nordic countris th main rul in th civil procdur is that th losr is obligd to pay th lgal xpnss of his own and thos of th othr party. This cost rul is also applid in th Nordic group actions for compnsation. In Finland and Swdn only th partis in th cas ar rsponsibl for th costs. Sinc th mmbrs of th group ar not partis to th procdings, thy will not b rsponsibl for th costs. On th contrary, in Dnmark and Norway th mmbrs may bcom partly rsponsibl of th lgal xpnss. Th ciling of mmbrs liability will, howvr, b dcidd by th court alrady in th bginning of th trial. 38 In cas th ciling is individual, but not collctiv, this maks it possibl for th potntial mmbrs of th group to assss, whthr it is conomically snsibl to opt in or not. Th qustion of lgal xpnss Th most ssntial qustion whn valuating th practical significanc of group action for compnsation is, how th actions will b financd. Group actions ntail much highr costs than individual cass in a normal civil procdur, albit 36 S HE 154/2006, p. 20 and OLJ 4/2006, pp. 61-67. 37 S th Norwgian Act on Civil Procdur, ch. 35, art. 7 and Btænkning nr. 1468, pp. 275-276. 38 S th Norwgian Act on Civil Procdur, ch. 35, art. 14 and Btænkning nr. 1468, pp. 276-277. numro 2/2007 Mrcato 93
that in individual cass too th costs of litigation ar th biggst obstacl to th us of courts in consumr disputs. 39 In group actions th plaintiff taks a grat financial risk, which in practic is too big for individual consumrs or small and mdium-siz consumr organisations. So, if group action is wantd to srv as a srious altrnativ in th sttlmnt of mass consumr disputs, which would also work in practic, th problm of high litigation costs, has to b solvd first. Whn assssing th Nordic group actions - acts or proposals - from this viwpoint, on has to admit, that th situation is far from satisfactory. All Nordic group actions ar basd on th so calld English rul: th losr has to pay th xpnss of his own and thos of th othr party. Bsids in Dnmark and Norway th courts hav a right to dcid that also th mmbrs of th group hav to pay a crtain amount of th xpnss. Ths kinds of ruls crat barrirs for accss to justic. Who is willing and abl to start a group action for compnsation, or join th group as a mmbr, if h has to pay th xpnss from his own pockt? Th Finnish proposal, which limits th right of action to public authoritis only, do not solv th financial problm, bcaus also public authoritis, including th Consumr Ombudsman, hav to work with limitd conomic rsourcs. In Swdn group action for compnsation, with a gnral scop of application, has bn possibl sinc yar 2003. So far th numbr of actions in Swdn has bn only six. On of thm hav bn startd by th Swdish Consumr Ombudsman. 40 It is obvious that th risk of high lgal xpnss has bn th main rason for th small numbr of group action for compnsation in Swdn. Howvr, th lgislator may us diffrnt mthods to lowr th conomic thrshold in group actions, in cas thr is nough political to us thm. Firstly, by using th no-cost rul and contingncy f or conditional f -paymnt systms it would b possibl to transfr th financial risk from th partis to th law offics. In this systm both partis would covr only thir own xpnss and attornys would b paid only in th vnt of a succssful outcom. Law offics may accpt this kind of paymnt systm, bcaus if thy win th cas, thy ar abl to charg much highr fs than in normal cass and thy will also rciv good publicity, which will incras goodwill towards th offic and bring nw clints to th firm in th futur. This systm has bn vry popular way to financ class actions in th Unitd Stats. Howvr, this systm dos not fit vry wll to th Nordic lgal systm and would probably b strang in many othr Europan countris, too. As mntiond bfor, in th Nordic countris th main rul is that th losr has an obligation to pay winnr s all lgal xpnss. No-cost rul in group action for compnsation would man a clar xcption from this main rul. Contingncy f and conditional f-paymnt systms ar in principl possibl, but ar not usd in th Nordic countris in practic. Th amount of attornys in ths countris is still quit rasonabl, which mans that thr is no nd to attract nw customrs by using paymnt systms whr th risk would b transfrrd to law firms. Attornys prfr to work on hourly wags, which man that thir incom do not 94 numro 2/2007 39 S,.g., Capplltti 1993, p. 285. 40 S,.g., Lindblom 2005, pp. 152-161. Mrcato
dpnd on th outcom of th cas at all. That is why, it is also probabl that th us of conditional fs would not bcom popular in Swdn, in spit of th fact that this possibility is xprssly mntiond in th Swdish Group Action Act. 41 Scondly, it is possibl to us diffrnt kinds of funding systms. A public or privat fund could financially support th plaintiff who brings a group action. Ths funds could rciv stat subsidis, but also a crtain prcntag of th mony won by group actions could b channlld into ths funds to b usd as capital for futur cass. Ths kinds of funding systms ar alrady usd at last in Canada. 42 Th first Finnish committ, which publishd its rport in yar 1995, also drw spcial attntion to th financing of potntial group actions. It proposd th stablishmnt of a spcial Stat Group Action Board. This board would hav rcivd its funding mainly from th stat budgt. Potntial plaintiffs could apply for conomic support which would also hav covrd th lgal xpnss which th plaintiff would hav had to pay to th othr party in cass which wr lost. Naturally, th Board would hav had to considr whthr thr wr good nough grounds to bring a group action or not. 43 In practic, this Board would hav dcidd in which cass group action is brought and in which not. Howvr, th scond Finnish committ, which publishd its rport in Jun 1997, abandond this ida. Th willingnss to public savings was th main rason. According to th instructions which whr givn to th committ whn it startd its work, th nw lgislation should not caus any xtra xpnss to th stat. 44 Unfortunatly, th scond committ did not propos any altrnativ modls how th problm of financing could b solvd. As mntiond abov, it would b possibl to stablish a spcial fund which could financ group actions without continuous stat aid. A crtain prcntag of th mony rcivd by succssful group actions could b channlld into this fund. Instad of using public rsourcs th fund would collct its capital mainly from privat sourcs. In this systm only th basic capital would normally b ndd from th stat. Group complaints in th Public Consumr Complaint Board Th traditional court procdur in most countris has bn criticisd bcaus it is not applicabl to th sttlmnt of mass disputs, including consumr mass disputs. Th sam criticism - th inability to solv mass disputs - may also b dirctd against th Nordic Public Complaint Boards. Howvr, concrning this mattr an intrsting xprimnt startd in th Swdish board alrady in yar 1991. It is now a prmannt systm basd on th law. Th Swdish Consumr Ombudsman is ntitld to bring to th Swdish Consumr Complaint Board a spcial group complaint against an individual tradr. Th Board may - if it considrs th complaint justifid - rcommnd that th tradr should giv th rcommndd rmdy to all consumrs who hav similar 41 S th Swdish Group Action Act, art. 38-41. 42 S L`Hurux, pp. 456-457 and Lindblom 2000, pp. 429. 43 S OLJ 1/1995, pp. 21-23, 60-65, 103-105 and 115-117. 44 S OLJ 3/1997, pp. 2, 97-98 and 131-133. numro 2/2007 Mrcato 95
dmands against th sam tradr, but who hav not prsonally complaind to th Board. If th Ombudsman is not intrstd in bringing a group complaint, consumr and labour organisations ar ntitld to do so. For som rason, th right to complain has not bn givn to individual consumrs. So, a procdur comparabl with a class action is not possibl in th Board. Th Swdish Consumr Ombudsman has brought approximatly on or two group complaints to th board vry yar. Most of th Board s dcisions givn in ths cass ar said to b complid with. 45 Howvr, it is unclar how th complianc has bn controlld in ths cass whn most of th consumrs involvd ar not known by th consumr officials. Opt in-systm is not applid in group complaints. In Finland a committ, which publishd its rport in January 2006, proposd that a similar systm should b adoptd also in Finland. According to this proposal, th Finnish Consumr Ombudsman could bring a group complaint to th Finnish Consumr Complaint Board in consumr disputs, whr svral consumrs hav similar kinds of claims against th sam tradr, and it would b possibl to solv all of thm by a singl dcision. In th Finnish proposal right to complain, not vn a scondary on, would not b givn to singl consumrs or consumr organisations. Th dcisions of th Board in group complaints would b rcommndations just lik in othr issus handld by th Board. Th Govrnmnt s Proposal on group complaints was lft to th Parliamnt in Sptmbr 2006. 46 Th Nordic nforcmnt systm: a succss story or somthing ls? Suprvision of markting and contract trms May th Nordic nforcmnt systm b calld as a succss story or somthing ls? It is clar, that th Nordic systm contains many positiv lmnts from th viwpoint of consumr protction. First of all, it is trmndous important that from th vry bginning of th stablishmnt of th systm for consumr protction, srious attntion was paid, not only to th contnt of th substantiv consumr law, but also to th accss to justic-qustions: nforcmnt of consumrs collctiv intrsts and individual rights. Scondly, a spcial, indpndnt suprvisory body, calld as th Consumr Ombudsman, was stablishd in ach of ths four countris. It is also ssntial to notic in this contxt, that nforcmnt of consumr protction was th sol task of ths Ombudsman. Suprvisory tasks wr not givn to som alrady xisting authority, for xampl, to th comptition authoritis. This has mant that 96 45 S ECLG 2005, pp. 5-6, Ljungqvist, pp. 20-21 and TmaNord 1998:572, pp. 56-65. 46 S OLJ 1/2006, pp. 9-10, 15 and HE 115/2006. numro 2/2007 Mrcato
th Consumr Ombudsman hav bn abl to focus all thir availabl rsourcs to th suprvision of markting and standard contract trms without a far that th fulfilmnt of othr tasks, for xampl, nforcmnt of comptition law, would hav startd to dominat thir activitis. On xampl from Finland may illustrat this risk. In yar 2002 th Finnish Markt Court s jurisdiction was nlargd also th comptition law issud, which soon startd to dominat th activitis of th Court. Nowadays, mor than 95 prcnt of th all cass dalt by th Court concrns public procurmnt. Th growing amount of comptition law cass hav causd dlays also to th duration of consumr law cass. Thirdly, it was xtrmly important to stablish spcial courts as dcisionmaking bodis instad of channling consumrs collctiv intrsts-cass to alrady xisting gnral courts. As mntiond bfor, in th Nordic countris criminal sanctions may, vn in consumr cass, b imposd by gnral courts only. Howvr, th us of criminal sanctions in consumr law-cass has in practic bn vry rar in th Nordic countris. Th main rasons hav bn th dismissiv attituds of public proscutors and judgs in gnral courts concrning th importanc of th protction of consumrs collctiv intrsts. That is why, it is mor than probabl that th lading markting law principls, which wr cratd by th cas law of th Nordic Markt Courts sinc 1970s, would b rathr diffrnt than what thy ar now if th Consumr Ombudsman would hav had to tak lgal actions in gnral courts instad of ths spcial courts. Fourthly, on clar bnfit in th Nordic systm has bn th wid us of prvntiv actions. Th Nordic Consumr Ombudsman us significant part of thir rsourcs in trying to prvnt bforhand any violation of law. Thy giv advanc opinions on rqust, draw markting guidlins and ngotiat with trad organisations concrning standard contract trms in svral branchs of businss. It is intrsting to notic that ths prvntiv actions ar mainly not basd on any law. On th contrary, thy hav bn cratd in practic during th yars whn th Nordic Consumr Ombudsman hav carrid out thir suprvisory dutis. Also in cass, whr infringmnts of law hav bn obsrvd, prsuasion ffort instad of sanctions has bn normally th first raction of th suprvisory authoritis. Ths prvntiv and prsuasiv mthods hav turnd out to b vry succssful du to th fact that most tradrs ar in practic mor than willing to co-oprat. Th main rason for this willingnss is th possibility to us hard law-sanctions in cas prsuasion fails. That is why, it is important to rmmbr th clos connction btwn soft law-mthods and hard law-sanctions. Without th possibility to us hard law-sanctions if ncssary, th prsuasiv mthods would not b so succssful as thy hav bn now in practic. Howvr, thr ar also clar dfcts in th Nordic nforcmnt systm. Prhaps th biggst problm is, that th traditional sanction systm dos not pay nough attntion to th unscrupulous tradrs who intntionally and rpatdly violat th law in ordr to incras thir sal numbrs and profits. Against ths tradrs, sanction systms whr th hardst sanction is an injunction ordr is in practic rathr toothlss. Ths tradrs ar not worrid about th potntial bad publicity numro 2/2007 Mrcato 97
connctd to ths cass, bcaus thy anyway hav to chang thir trad nam onc an yar in ordr to gt rid of dissatisfid and complaining consumrs. Bcaus criminal law sanctions nforcd by public proscutors and gnral courts hav turnd out to b in practic vry rar, mor attntion has to b paid to th dvlopmnt of th markt law sanctions. In Swdn it has bn possibl to impos markt disruption f sinc yar 1995. Th ciling for this sanction is tn prcnt of th tradr s annual turnovr or uro 500.000. It is obvious, that also th othr Nordic countris hav to adopt mor or lss similar financial sanctions in th futur. Group action for compnsation Also in th Nordic countris on grat problm has bn th lack of accss to justic in mass consumr disputs. In many of ths cass th damags ar causd by th us of unfair standard contract or unfair markting which hav tmptd consumrs to buy somthing thy would not othrwis hav bought. Traditionally th court systm in th Europan countris has bn inapplicabl for th sttlmnt of mass consumr disputs. In th discussion concrning th sttlmnt of mass consumr disputs most attntion ovr th last fw dcads has without doubt bn paid to group action for compnsation. Group action for injunction in consumr mattrs is nowadays possibl in all EC Mmbr Stats. Group action for compnsation is, howvr, still quit rar outsid common law countris. Th EC is not at this momnt prparing any dirctiv on group action for compnsation. Th dirctiv on injunctions for th protction of consumrs intrsts (98/27/EC) ntitls suprvisory bodis to tak lgal action in othr Mmbr Stats only in ordr to impos an injunction ordr. Th passivity of th EC concrning group action for compnsation was, for xampl, usd in th Finnish lgal dbat at th nd of 1990s. It was argud that th adoption of group action for compnsation bfor othr Mmbr Stats do so, would caus srious problms to Finnish ntrpriss in th intrnal markt. This so calld EC-card has also bn usd in th lgal dbat in Finland bfor. Thus, in mattrs concrning product liability it was possibl to dlay th adoption of strict liability for mor than a dcad. 47 Howvr, th argumnt that mor advancd lgislation would caus srious problms to domstic ntrpriss is qustionabl. It sms that it is basd on an xaggratd concption of th ffcts of lgal rgulation on businss activitis. In Canada, for xampl, group action for compnsation is possibl only in thr provincs, British Columbia, Ontario and Qubc Ontario. So far thr has bn no alarming nws that group action has causd srious damag to ntrpriss in ths provincs. 48 Du to th activ law drafting during th rcnt yars, it sms that situation is slowly changing in Europ. Espcially th Nordic countris has bn quit activ. Group action for compnsation has bn possibl in Swdn sinc th yar 2003. 98 numro 2/2007 47 S Viitann 1994, pp.165-167. 48 S,.g., Lindblom 2000, pp. 428-429. Mrcato