Representative actions (Prozessstandschaft) in German law, allows associations to claim the right of a person concerned in her/his own name. In addition to determining an infringement, claims for damages can be enforced.
In civil law, a distinction is made between a legal and an arbitrary representative action.
The difference between those two types of representative actions resides in the fact that legal representative action is provided by law, and arbitrary representative action is self-chosen and only possible under rather strict conditions.
However, for the anti-discrimination area, we only concentrate on arbitrary representative actions.
Firstly, the representative must be authorized by the plaintiff. This is because in principle the plaintiff has to assert rights him/herself. Moreover, the representative must also have a legitimate interest in enforcing the rights of the person concerned. There must therefore be vital reasons for a representative action.
In order to avoid conflicts of interest, the representative may not be involved in any form or role in the proceedings him/herself. This does not preclude the acquisition of an advantage in the case of a successful action. The decisive factor is that the interests of the association and the person concerned do not conflict and that they pursue the same objectives. The general rule applies that the party that loses the case has to bear the legal costs. The costs are composed of the court costs and those for legal counselling.Since in representative action, the concerned person is not the plaintiff, but the representative, the latter also bears the risk of litigation.
In Germany, the German Equal Opportunities for People with Disabilities Act and the Social Security Code provide for representative actions by associations.
The AGG does not provide for representative action. The BUG is committed to the introduction of such a support system. For further information please click here.