Class actions damage the? Successful Switzerland model?
At the beginning of 2020, the Federal Council removed the instruments for so-called collective legal protection from the planned revision of the code of civil procedure. It was about the class actions that have often been called for, which undoubtedly have real advantages for consumers. But there are also disadvantages, because the Swiss legal system is not called a successful model for nothing. A separate draft law on class actions is now to be presented by the end of 2021.
At the beginning of December 2020, the Federal Commission for Consumer Issues invited to a discussion on the subject of class actions. It was about their meaning and their meaningfulness or whether there was any. In addition, it should be clarified at the same time whether a Swiss-wide regulation should be created. The economy is not very positive about this matter and has regularly fought corresponding proposals in the past. She was pleased that collective redress had been removed from the revision of the Code of Civil Procedure.
It is now clear, however, that the Federal Council should prepare a separate template by the end of this year, which will address the issue of class actions. The economy still rejects the introduction of such instruments and will in all probability oppose it vehemently.
Wealth only without class actions?
Critics of the class actions are of the opinion that Switzerland would only have achieved a successful model because there was no collective legal protection. The country's prosperity is due to a functioning economy, without which there would be no jobs, no infrastructure and no social security. Thus, it is required not to change anything in the previous successful model in order to be able to maintain exactly this. For critics, balanced legislation, which also relates to procedural law, is one of them. There is even talk of? Enemy images? and "bias" when it comes to class actions. So it is wrong to change the law just because a few Swiss companies are behaving incorrectly. Criminal law against these black sheep of the economy already exists and there is no reason to change it. Because: In Switzerland there is also corporate criminal law, which is not common in other countries. In addition, the supervisory law must be taken into account, which is intended to prevent grievances. Furthermore, the ombuds system should be mentioned, with which many disputes can be resolved professionally, inexpensively and, above all, quickly. Those responsible from the business world are now asking: Should all of this really be given up because collective legal protection is to be integrated?
The consumers are in charge
However, it is not the economy alone that decides on the applicable law; consumers usually have the greatest leverage. In any case, they often have far more rights than they are even aware of. Companies need a good reputation so that they can continue to be successful or so that this is possible in the first place. Do the companies get their reputation from the consumers? if they deny a good reputation, the company will be in poor shape in the future. Some industries are also well organized in terms of self-regulation. Consumers use enormous leverage and can make the misconduct of companies public. An example of this are various Internet platforms on which a company valuation is possible. In some cases, companies are more likely to be protected than consumers, and from a purely legal point of view, these platforms are not always ideally positioned.
Conclusion: collective legal protection as a double-edged sword
On the one hand, consumers are demanding more and more rights and more opportunities to enforce these rights. On the other hand, there are companies who see themselves threatened by the demand for a collective legal system that offers the possibility of class actions. The latter assume that consumers already have enough leverage to steer companies in the desired direction. Cases such as the VW emissions scandal, in which so many consumers were harmed and no compensation were received, are likely to be decisive for the demand for a class action lawsuit. Here the possibility of class action would have resulted in more fairness for consumers. Accordingly, both sides are to be understood and both the demand and the rejection of collective redress becomes understandable.
