Luther, Jörg --- "The Constitutional Impact of Class Actions in European Legal Systems" [2012] ELECD 314; in Backhaus, G. Jürgen; Cassone, Alberto; Ramello, B. Giovanni (eds), "The Law and Economics of Class Actions in Europe" (Edward Elgar Publishing, 2012)

Book Title: The Law and Economics of Class Actions in Europe

Editor(s): Backhaus, G. Jürgen; Cassone, Alberto; Ramello, B. Giovanni

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847208033

Section: Chapter 15

Section Title: The Constitutional Impact of Class Actions in European Legal Systems

Author(s): Luther, Jörg

Number of pages: 21

Extract:

15. The constitutional impact of class
actions in European legal systems
Jörg Luther

The transplant of class action into European Legal Systems has to face
several questions arising from the European Constitutionalism. Legal
comparison helps to understand that the European future of class action
depends first of all on how we understand the European origins (Section 1)
and the diversity of European legal cultures and societies (Section 2). The
political choice of the European lawmakers can be conditioned by specific
reasons of economical rationality and cultural reasonability. They are
obliged to hold in balance different national and supranational constitu-
tional rules and principles. An assessment of the constitutional impact
could be helpful if we take into consideration aspects such as the law
making competences (Section 3), the fundamental social and economical
rights (Section 4) and the rights of action and defence (Section 5). The
following remarks, however, try just to start a comparative debate from an
Italian point of view (Section 6).


1. THE EUROPEAN ROOTS OF THE `CLASS ACTION'

Comparative lawyers look to the `class action' as an institution of the
federal and state law of the United States grounded on the English `repre-
sentative action'.1 This history should need further research from a larger
comparative perspective, looking also at the roman law rules of `pro alio
agere' through special forms of `procurator ad litem', such as the `duoviri' in
the cases of municipia, the `quivis ex populo' beneficiary of a poena in the



1
For a ...