European digital constitutionalism and remedies - 3rd EU Civil Justice Seminar Series
News
Mapping Study TPLF in Europe
The European Commission has released the Mapping Study on Third Party Litigation Funding (TPLF) in the European Union. This comprehensive study provides a detailed
analysis of legislation, practices, and stakeholder perspectives across the EU and in selected third countries.
Over the past years, third party litigation funding has become one of the most debated topics in European civil justice. The EU Representative Actions Directive - requiring Member States to establish collective action mechanisms for EU consumer cases - has intensified this discussion. Collective actions to obtain damages often involve significant expenses and procedural risks. In the absence of other suitable funding mechanisms, TPLF has gained prominence as a means to support such claims.
This trend was also reflected in extensive research, reported earlier on this website, carried out at the request of the Dutch Ministry of Justice on the WAMCA (the Dutch Act on Collective Damages Claims), which highlighted the growing reliance on third party funding in the Netherlands.
In September 2022, the European Parliament adopted a Resolution on Responsible Private Funding of Litigation, urging the European Commission to consider stricter regulation of TPLF. In response, the Commission commissioned this in-depth Mapping Study, which analyses existing legal frameworks, practical experiences, and the divergent approaches among Member States.
From our research group, Jos Hoevenaars acted as national co-reporter, and Xandra Kramer contributed as a member of the advisory board. The findings of this study will play a key role in shaping the future policy debate on TPLF regulation in the EU.
Published: June 9, 2021
The third seminar of the EU Civil Justice Seminar Series took place on Friday 4th of June 2021. The Seminar touched upon the topic of European digital constitutionalism and remedies. In the past two decades, the European Union has developed a framework of European digital constitutionalism. This framework was prompted as a reaction towards the predominance of digital private norm activities which were accelerating within the EU. Within this EU framework, there are various remedies and dispute resolution mechanisms available. These remedies are not just public remedies, but also bottom-up approaches to enforcement. For example, the Facebook Oversight Board presents a form of private adjudication. The European Commission proposal for a Digital Services Act (DSA) acknowledges the need to regulate such online platforms, for instance it requires online platforms to be transparent about why they take particular decisions.
Giovanni De Gregorio, who is a postdoc at the Centre for Socio-Legal Studies at the University of Oxford, kicked of the seminar with providing the introduction of the topic European digital constitutionalism. He explained how the remedies within the framework are shaped and why these remedies have been made available. He noted the shift which is experienced from digital liberalism to digital constitutionalism.
The second speaker, Catalina Goanta, who is an assistant professor at Maastricht University, touched upon the platform powers. She explained that platforms are offering much more functions than just content, such as commercial functions of social commerce. She gave the example of Instagram, through which people can buy shoes. Catalina stressed the importance of asking the question on how to answer to this increasing power of these platforms. In this regard, Catalina addressed the potential of the DSA.
The third speaker was Clara Iglesias Keller, who is a postdoc research fellow at the Leibniz Institute for Media research and at WBZ Berlin Social Sciences Centre. She touched upon the topic of judicial review and constitutionalism. She highlighted the complexity of drawing up regulation for the Internet and also raised concerns of how claims can be redressed, as she pointed out that some claims are not brought to court.
A vivid discussion followed raising numerous insights and food for future thought.