Regulation and Private Litigation: A Debate Over the European Perspective

Abstract

Started from the successful lawsuits against tobacco companies a debate began in the United States legal scholarship over whether litigation is being used by private parties to circumvent the legislative process and regulate various industries or activities. The emergence of the phenomenon poses a set of questions for scholars and policymakers. Under such circumstances is it appropriate to foster broad policy changes through such litigation? European authors tend to criticize the potential of litigation to generate suits against entire industries, resulting in damages for unforeseeable events, and to obstacle the democratic process.

The aim of this paper is to present and to discuss the interaction of regulation and private litigation in the European-single-market. The arguments ground both on the regulatory failures and on the fact that shareholders and consumers' actions are mushrooming in the Member States and various nations, including the Netherlands and the United Kingdom, have enacted or are enacting laws allowing aggregation methods to make mass litigation more efficient. The trend toward mass lawsuits, combined with emerging consumer friendly substantive laws and the availability of U.S.-style practices, will probably create a new litigation landscape in Europe over the next few years.

Keywords: Litigation, European Union, Regulation