The draft directive 2018/0089 (COD) strives for different aims. The scope of application of the former directive is supposed to extend with it. Besides consumer law, areas of data protection, financial services, tourist traffic and tourism, energy, telecommunications, and environment are supposed to be covered. With the new directive, minimum criteria are getting set for qualified institutions.

Furthermore, the efficiency of the procedure of the association action is supposed to be guaranteed. According to article 12 of the draft directive, the procedure is supposed to be carried out with due speed and in accordance with article 15, member countries are supposed to prevent qualified institutions from being hindered by financial obstacles through high procedural costs. Further, they need to guarantee that consumers are informed about the outcome of the suit and that legal decisions, injunctions and statement decisions by courts and authorities apply as irrefutable evidence in individual legal protection procedures within the same member country, whereas in other countries, they apply as rebuttable presumption (article 10 of the draft directive).

The person who is affected by the presumption (the consumer) does not have to prove the assumed factual or legal situation. The opposing party can bring proof of the contrary to disprove the presumption. Thereby, legal uncertainty and unnecessary costs are supposed to be avoided.

If a French association files a suit against company X and the French courts affirm a violation against consumer protection, an association in Germany which also file a suit against company X can appeal to this finding. The French court decision does not have a probative force but acts as an assumption. It is assumed that company X also violates consumer protection in Germany as in France. Company X can provide proof to refute the presumption.

Furthermore, the draft directive does not only strive for omission, but also various measures. Generally, there should be decisions regarding a remedy and observation in terms of complex quantification of damages for consumers. Therefore, authorities and courts have a margin of discretion which is interpreted tightly. A possibility of a declaratory decision is supposed to be given in explained cases. In terms of mass charging events, there should not be declaratory decisions. This is the case if consumers who have similar damages from the same practice can be identified. Another case involves small claims. Regarding small claims, it is unlikely that the consumer is going to take legal action because there are only small damages. Courts could decide that it would be disproportionate to return means to the consumer.

Nevertheless, the loss can be substantial. That is why there needs to be the possibility that qualified institutions can file a suit in terms of damages, which should serve to the protection of consumers collective interests by using them for public purposes (as for example paying into a Legal aid fund, use of funds for awareness-raising campaigns etc.).