Collective redress mechanisms were introduced into Lithuanian legal system a reasonably long time ago. For instance, the competition law collective redress mechanism was introduced in 1999, the group action was adopted in 2003 with the adoption of the new Civil Procedure Code (hereinafter - the CPC). To this day, individual actions are dominating in the courts. However, the only successful collective redress mechanism that is being applied in practice is the general protection of the public interest. It should also be mentioned in advance, that the Court of Appeal of Lithuania limited the application of the group action mechanism by acknowledging the lack of regulation and declaring the impossibility of bringing the group action .
Lithuanian law provides for two general collective redress mechanisms and four sectoral. Both general collective redress mechanisms can be found in Article 49 of the CPC. Part 1 to 5 of this article regulates the general action for the protection of public interest, whereas Part 6 establishes the group action. On the other hand, sectoral mechanisms can be found in the respective laws: two consumer collective redress mechanisms are established in the Chapter 7 of the Law on Consumer Protection, competition collective redress mechanism - in the Article 16 of the Law on Competition and lastly, environmental collective redress mechanism - in the Article 7 of the Law on Environmental protection.
Due to the fact that the group action is linked to public interest and the public interest is widely interpreted by the courts, the scope of the group action does not have any preconceived restrictions. For the same reasons, there are no preliminary restrictions regarding the general action for the protection of public interest. Consumer collective redress mechanisms generally may be used when legitimate common interests of consumers are being infringed. Whereas competition collective redress mechanism is used when the legitimate interests of an undertaking are violated by acts of unfair competition and lastly, environmental collective redress mechanism accordingly in the field of the environment and environmental protection as well as utilization of natural resources.
Firstly, it should be noted that there are neither any explicit restrictions concerning persons able to file the group action, nor a list of subjects that are permitted to bring the group action, consequently it should be speculated whether the group action could be filed only by persons permitted to defend the public interest. Secondly, all the other collective redress mechanisms have restrictions regarding plaintiffs. The general action for the protection of the public interest can be brought by a prosecutor, state, municipal authority or other persons appointed by law. Consumer collective redress mechanisms may be used by the State Consumer Rights Protection Authority, certain consumer associations and in cases laid down by law, other state and municipal institutions and legal entities. Competition law collective redress action can be brought by organizations representing the interests of undertakings or consumers. Lastly, environmental law collective redress action may be filed by the public concerned.
The CPC does not provide for any specific certification criteria of the group action or the general action for the protection of public interest that would enable a priori refusal of the action. Bearing that in mind, plaintiffs would only have to prove the existence of public interest. On the other hand, sectoral mechanisms have certification criteria. Regarding consumer collective redress, out-of-court negotiations are obligatory in order to file a claim. In cases of competition collective redress, the plaintiff would have to prove that he/ she represents interests of undertakings or consumers. Whereas in cases of environmental collective redress, associations and other public legal persons would have an obligation to prove that they promote environmental protection and are established before the adoption of decisions, acts or omissions that are being contested.
Environmental collective redress actions could potentially be brought in accordance with both civil and administrative procedure rules. However, since most of the cases concern the legality of regulatory administrative enactments adopted by the entities of public administration (mostly in the field of territorial planning), the majority of the actions regarding this mechanism is governed by administrative procedure rules, whereas other collective redress mechanisms are governed by civil procedure. Due to the fact that most of the particularities are related to certification criteria, persons that have standing and available remedies, general civil/ administrative procedure rules are mostly applied.
Due to the lack of specific regulation regarding other collective redress mechanisms, most of the issues are governed by general civil procedure rules. However, due to the fact that most of the environmental cases are governed by administrative procedure rules, rules of civil procedure are not applied.
Firstly, the CPC does not provide any special rules concerning participation of foreign plaintiffs in the group action and the competition collective redress claim, therefore bearing in mind the general rules of jurisdiction, they are able to participate in the group action. Secondly, only persons appointed by law may defend the public interest by using the general action for the protection of public interest and both of the consumer collective redress mechanisms, for instance, the institutions or organizations of the member states of the European Union, satisfying the conditions of Article 33 of the Law on Consumer Protection may defend the public interest of consumers. Thirdly, due to the laconic wording of the Subsection 22 of Article 1 of the Law on Environmental Protection it is not clear whether foreign plaintiffs have locus standi.
Due to the fact that there is no specific regulation regarding res judicata of collective redress mechanisms, general rules of the CPC or the Law on Administrative Procedure apply.
There are no special rules regarding remedies that can be invoked by bringing the general collective redress mechanisms. However, means of protecting civil rights by filing one of the general collective redress actions and seeking remedies offered by the general civil procedure rules remain a matter of discussion. On the other hand, the laws of sectoral collective redress mechanisms provide a list of remedies that can be sought by using the specific mechanism. It should be noted that all the redresses in the field of sectoral mechanisms are non-pecuniary in nature.
Bearing in mind that general rules of civil procedure regarding the types of remedies apply, there is a possibility of seeking a money judgment by using general collective redress mechanisms. On the other hand, the law regulating sectoral collective redress mechanisms does not entitle plaintiffs to a money judgment.
As there are no special rules regarding the costs of the general collective redress mechanisms and the sectoral collective redress mechanisms, general rules of the CPC or the Law on Administrative Proceedings apply. Moreover, there are neither any special, nor any general regulations regarding the funding of collective redress mechanisms.
Finally, it should be noted that there are plans to reform only the group action. It should be stated that the courts of the Republic of Lithuania refuse to hear the group actions due to the lack of legal regulation.
In 2011 the Ministry of Justice proposed to the Parliament of the Republic of Lithuania an amendment of the CPC regarding the group action (hereinafter - the Amendment). The Amendment introduces an opt-in system of the group action. According to the Amendment, the group action would no longer be linked to the public interest, as the interests of the group do not always coincide with the public interest. According to the Amendment, a rule on mandatory group representation by an advocate or other representative is introduced. Additionally, the group will be subject to obligatory out-of-court negotiations and the court will be able to accept the group action only if the parties have failed to solve their dispute peacefully by mutual agreement beforehand. Moreover, the Amendment suggests that if members of the group bring individual pecuniary claims, the court could grant a prejudicial ruling. This ruling would adjudge the mutual facts of the case so that individual claims related to the group action could be decided faster and in written proceedings. This concept also ought to reduce the costs of litigation for the parties and the state.
1. Court of Appeal of Lithuania 2009-06-02 order No 2-492/2009.