Gaetano Vitellino

The analysis presents three main arguments. First, interim relief may be granted not only by courts with jurisdiction over the merits but also by other courts. In this case, the restrictive conditions set out in Art 35 of the Brussels Ia Regulation, as interpreted by the CJEU, should not apply when no EU courts can hear and decide the dispute. Second, recognition and enforcement of provisional measures ordered by non-EU courts are subject to differing domestic rules across Member States. The analysis shows that in most countries - both within and outside the EU - foreign interim measures are generally not capable of being recognised, mainly due to their provisional nature. Third, the paper explores two key aspects of the free circulation of provisional measures within the EU. Firstly, contrary to the suggestions made by the European Commission in its recent report on the application of the Brussels Ia Regulation, it argues that provisional measures granted by EU courts with jurisdiction over the merits under national law should also freely move. Secondly, in line with the rationale behind Art 35, interim measures issued by courts without jurisdiction over the merits should not be prevented from circulating when no EU court can hear and decide the dispute.

In this article it is argued that EU rules prohibiting unfair trading practices, in particular in the food sector, are intended to confer subjective rights arise upon consumers – namely the right to determine freely and with full knowledge whether or not to buy a given foodstuff – which may therefore be enforced by means of private law actions, although this sounds unusual in Europe. It might be argued that enforcement of EU is essentially a matter for the law of Member States only, so that national remedies, based either in contract or in tort, should be relied on. However, the role EU law may play in affording uniform as well as effective protection to consumers’ rights must be emphasised. It is in particular suggested that the final seller may be held liable in contract under the Consumer Sales Directive for breach of duty to supply goods in conformity with the contract where the consumer’s decision to purchase a food product has been affected by a misleading commercial practice. Consumers may further rely on the horizontal direct effect of EU food information provisions in order to seek compensation for loss suffered as a result of infringement thereof. Finally, both injunctive and compensatory collective redress procedures are of utmost importance. In most cases, indeed, although a very large number of consumers is likely to be affected by unfair commercial practices, each consumer often suffers only small damages and is then reluctant to file an individual lawsuit. Hence, insofar as aggregate litigation facilitates access to justice, it appears to be the only effective means for ensuring judicial protection for rights granted to consumers under EU law. On the other hand, due particularly to their deterrent effect, both types of collective redress mechanisms may improve the enforcement of EU food law, thus supplementing public enforcement. It follows that private consumer enforcement cannot be achieved without collective redress. In this perspective, not only Member States and EU legislature should go ahead with developing procedural mechanisms based on the class action model, but the possibilities already offered by the injunctive action should also be better exploited.