1 Introduction

Consumer collective redress is constantly attracting more interest in Europe. It seems to be finally receiving the attention that it deserves, although it is still very far removed from the accomplished system of class actions in the United States. There is a certain development away from the usual European debate on a collective mechanism that we do not want to have in Europe towards finding an adequate solution for consumers that is compatible with the civil law tradition. The Scandinavian countries, first and foremost Sweden and Denmark, have done some pioneer work in this regard.Footnote 1 As will be seen, the collective redress in BiH was introduced at about the same time as in the Scandinavian countries, but with considerably less practical application. So far the consumer’s need, as a weaker party, to have an effective collective mechanism in place in the European debate has been overshadowed by concerns about an abuse of collective proceedings resulting in unreasonable reputational damage to the trader, the uncertainty surrounding collective claims for damages including the fear of the introduction of punitive damages and the skepticism towards consumer organizations. Such concerns are still shared by legislators and stakeholders in Bosnia and Herzegovina (BiH) and are reflected in the latest reform of the Litigation Procedure Acts (LPAs). Without a clear instruction from the EU, BiH would rather slowly introduce a consumer collective redress mechanism that is compatible with its legal tradition. The last thing that a country which continues to be in transition even 25 years after the Bosnian war needs are more legal experiments. BiH legislation has been subject to many experiments, from its Constitution to ordinary legislation, but also many experiments in the field of consumer protection, as will be further elaborated upon below. The EU was struggling to agree on a clear message to its Member States. After a long period of preparation, in 2013 the EU only issued a Recommendation on common principles for injunctive and compensatory collective redress mechanisms.Footnote 2 This paper has been written in a phase when the EU is finally about to issue a Directive on representative actions for the protection of the collective interests of consumers, after the European Parliament and Council agreed on a joint text on 22 June 2020.Footnote 3 The agreed text of the EU Directive on consumer representative actions will be taken into account when assessing the solutions in BiH legislation. The EU Directive on consumer representative actions will take a big step forward especially by compelling EU Member States to introduce collective damages claims and to include them in a joint procedure with claims for declaratory relief and injunctions.

The consumer collective redress mechanism in BiH is a highly interesting and complex area. Firstly, it contains institutions from the former Yugoslavia, the European Union and the U.S. This paper will examine whether and how these institutions may co-exist in one legal system. Secondly, it will focus on the weaknesses of the main stakeholders and their part in the responsibility for the lack of effectiveness. And thirdly, the question will be raised as to whether there is already too much consumer collective redress regulation in BiH or should there in fact be more. If we would try to summarize the legal situation, it would be fair to state that in BiH from the point of view of legislation there are attempts to introduce as many remedies as one can possibly think of and yet the results in practice, at least when it comes to case law, are almost non-existent.

When analyzing the questions raised it has to be borne in mind that BiH is a multi-unit state with more than one legal order. Therefore, many aspects will be further complicated because of the unharmonized legislation within the territory of BiH itself. Furthermore, some laws have been taken over by means of succession from the former Yugoslavia and some of the new provisions are inspired by solutions in the neighboring former Yugoslav republics, which are now independent states. Where appropriate, literature from these states will be used for interpreting the legal solutions in BiH.

The analysis will start by explaining the constitutional framework of BiH (1), simply to enable readers to follow the interpretation of various legal acts enacted on several legislative levels in BiH. Then it will shift to an analysis of actio popularis (2), because this is the oldest and most traditional provision on collective redress in BiH. Further, it will switch to the Consumer Protection Acts of BiH and the Republic of Srpska (CPA of BiHFootnote 4 and CPA of R. SrpskaFootnote 5) (3). These acts are not only the main acts for consumer protection in BiH, but also the first ones to introduce consumer collective redress in BiH. When analyzing both CPAs the focus will be on possible remedies, on the one hand, and persons who have standing to initiate proceedings, on the other. The role of consumer organizations will be analyzed not only under the CPA but also in proceedings before the Competition Council. Finally, the collective redress mechanism under the Litigation Procedure Acts of FBiH, R. Srpska and D. Brčko (LPA of FBiH,Footnote 6 LPA of R. SrpskaFootnote 7 and LPA of D. BrčkoFootnote 8) is assessed to establish how the legislative framework of BiH functions as a whole (4). The solutions from the LPA provide a more detailed and more restrictive legal framework for consumer collective redress, which is most likely to be followed by the courts. In the analysis of the LPA, jurisdictional issues will also be briefly addressed.

2 Legal Sources for Consumer Collective Redress in Bosnia and Herzegovina as a Multi-Unit State

The Constitution of Bosnia and Herzegovina (BiH) is embedded in Annex 4 of the Dayton Peace AgreementFootnote 9 and was originally written in the English language. The General Framework Agreement for Peace in Bosnia and Herzegovina was accepted in Dayton, but signed on 14 December 1995 in Paris. Article 1(3) of the Constitution states that Bosnia and Herzegovina consists of the two entities: the Federation of Bosnia and Herzegovina (FBiH) and the Republic of Srpska (R. Srpska). In addition, because of the geographical and strategic importance of Brčko, the political parties were unable to reach an agreement on the area surrounding the city of Brčko during the Dayton negotiations. However, the parties did agree to binding arbitration on the disputed territory (Art. 5 of Annex II of the Dayton Peace Agreement) and the Arbitral Tribunal issued a Final Award on 5 March 1999, establishing the Brčko District as a unit of self-government under the sovereignty of Bosnia and Herzegovina. The Brčko District is considered to be a de facto third entity, which cannot be regarded as a federal unit since it is not afforded the right to participate at the state central level.

The Constitution provides no clear answer as to whether the federal state or the entities (FBiH and the Republic of Srpska) have competence for consumer protection and/or collective redress. Without delving more deeply into this discussion,Footnote 10 the result is that part of the legislation has been adopted at the state level and a part thereof has been adopted on the level of the entities. When it comes to substantive consumer law before the transposition of the consumer protection directives, the legal system of Bosnia and Herzegovina did not contain any provisions whose application was limited to consumers. However, some provisions of the Yugoslav Law of Obligations of 1978Footnote 11 offered a high level of protection, particularly in the case of contracts for the sale of goods and the producer’s liability for damage caused by defective products. Since the splitting of Yugoslavia this Act has remained applicable in two slightly different versions in each entity of Bosnia and Herzegovina as the Law of Obligations of the Republic of SrpskaFootnote 12 and the Law of Obligations of the Federation of Bosnia and Herzegovina.Footnote 13 Both Laws retained the provision on actio popularis unchanged.Footnote 14 The first CPA of BiH was adopted in 2002;Footnote 15 due to its lack of application in practice, it was replaced in 2006 by the current CPA of BiH at the state level. In the last few years R. Srpska has adopted a number of laws previously adopted at the state level, and one of them is the CPA of R. Srpska. Consequently, the CPA of BiH is now valid in the FBiH and DB, whereas it only applies in R. Srpska to the extent that it offers a higher level of protection than the CPA of R. Srpska.Footnote 16

Commercial loans with floating interest rates related to the Swiss Franc caused enormous harm to consumers and brought about the biggest media promotion and awareness of the importance of consumer protection in BiH and the whole of the former Yugoslav region thus far. It resulted in the only amendment to the CPA of BiH in 2015, which states that ‘credit contracts may not contain an indexed currency clause in a foreign currency, except for Euro’.Footnote 17 The legislator was under great political pressure to resolve consumer credit agreements differently, not only because of the loans related to the ‘Swiss franc’, but also because of the guarantors who had to repay loans that should never have been given by the banks in the first place. That is why in FBiH the Law on the Protection of Users of Financial Services was adoptedFootnote 18 almost simultaneously with the Law on the Protection of Guarantors,Footnote 19 and similar provisions in R. Srpska were integrated into the Law on Banks.Footnote 20 Of course, these legislative solutions had no retroactive effect.

These new acts did not provide for new collective redress mechanisms, although they did introduce new Ombudsmen for the banking system of each entity. The Ombudsman body for the banking system has quite important powers, because it is authorized to free a guarantor from his guarantee, if the provisions on the Law on the protection of guarantors are violated. Although these Acts take priority over the Consumer Protection Acts with regard to issues regulated by them,Footnote 21 collective redress is a matter that is not covered by the new acts. In fact, the new laws explicitly refer to the CPAs when it comes to collective redress. The only addition is that a collective redress may not only be filed when the provisions of CPA have been violated, but also for a transgression of the provisions on the Law on the protection of guarantors.Footnote 22

An important role in practice is played by the consumer collective redress mechanism provided by the Competition Act of BiH, which is valid at the state level.Footnote 23 The competent body to take measures against distorted market competition under the Competition Act is the Competition Council, with a possible administrative procedure against the decision of the Competition Council at the courts of BiH.Footnote 24 Both the Competition Council and the courts of BiH operate at the state level.

The LPAs of the entities in their latest reform have jointly introduced a special civil procedure for the protection of collective rights and interests, whenever these are stipulated in specific laws (Articles 453a–4 53h of the LPA FBiH, 453a–453ž of the LPA R. Srpske). With its reform in 2018 he LPA of the Brčko District of BiH introduced in its Articles 450–457 the same provisions on collective redress as in specific acts by the other entities.Footnote 25

3 Actio Popularis in BiH—No Use for Consumers?

The popular claim of ‘actio popularis’ in Article 156 Law of Obligations is one of the oldest provisions in the legal system of BiH which may be used as a legal basis for consumer collective redress. Its wording certainly leaves room for consumer protection, although it has never been used in this field. That is why it has also not been often analyzed from a consumer perspective in the literature. It is commonly known as the ‘environmental claim’Footnote 26 because of its original goal to protect against environmental harm, but without specifically mentioning any public interest. Arguments will be provided as to how this provision may be very useful for consumers as well.

Firstly, it is widely formulated as it allows ‘any person’ to ‘request another person’ to eliminate a source of significant danger for him or her or even ‘for another person’. This active and passive legitimation is without restriction and allows for representative claims for the benefit of other persons. The focus is solely on the substantive conditions in Article 156(1) and (2) Law of Obligations: ‘the source of significant danger’ and ‘the prevention of the occurrence of damage or disturbance, or the elimination of the source of danger’. The notion contained in the provision is that there is a danger not just to the property and personal rights of the potential applicant(s), but even more so to a public interest (e.g. the earth, air or water), which will affect a greater number of people in either the short term or the long term.Footnote 27 The reasons for actively legitimizing any person to act for another person may be found in the danger to a public interest, but also in the preventive character of the provision. This can best be seen in Article 156(3) Law of Obligations, which provides that a request for damages is limited to ‘excessive damages’ if the damage is the result of performing an act in the public interest for which approval has been obtained from the competent authority.

It is obvious that the provision is suitable for environmental damage. However, it is not limited to the protection of the environment as a public interest and it is not at all limited to damaging acts performed in the public interest. Firstly, the limitation under Article 156(3) Law of Obligations on ‘excessive damages’ is only applicable when the damaging act has been pursued in the public interest, which means that there is no limitation when the act has been pursued according to private interests. Therefore, damage by acts as a result of or mostly as a result of pursuing a private interest are also covered. Secondly, the prevention of the occurrence of damage may also be applied to unfair contract terms even before any damaging consumer contract is entered into based on such terms. Some authors have expressed the view, however, that the interest protected by Article 156 Law of Obligations cannot be purely economic loss, but that it must somehow be related to health.Footnote 28 Although there is no express indication of such a limitation in the provision, it is possible that the courts would follow such a reasoning in their attempt to draw an analogy with environmental claims as the core area of application. The same authors do acknowledge that if such an interpretation would be followed, cases involving product safety would easily fulfil the conditions of ‘sources of significant danger’ and the need for the prevention of further damage.Footnote 29

Actio popularis under Article 156 Law of Obligations is a claim for performance: an injunction or the removal of a source of danger and its restitution. The claim for performance may be purely preventive or may be raised when the damage has already occurred, whereas the claim for damages may only be raised once the damage has in fact occurred. While the claim for an injunction or the removal of the source of danger may certainly be filed by any person in order to prevent damage or to protect a legal interest of whatever kind, it is quite disputable whether a claim for compensation could be filed as a representative claim on behalf of another person or a group of persons.Footnote 30 As will be seen below, even the reform of the LPAs has not led to the introduction of mechanisms for collective damages claims in the legal system of BiH. It is highly unlikely that the courts would allow such claims under the current legislation. Once the LPAs or some of the more specific acts, such as the consumer acts, would provide for the possibility of collective damages claims, an action for collective damages would also become possible under Article 156 Law of Obligations. In Article 156 Law of Obligations there is no barrier to collective damages claims, but rather a lack of legislation enabling this. The courts in B&H do not have a tradition of developing new forms of claims through case law; they rather interpret the LPA very strictly.

4 Collective Redress in the Consumer Protection Acts of BiH and R. Srpska

4.1 The CPA of BiH 2006 as Influenced by the EU, Germany and the U.S.

Consumer protection was introduced in the legal system of BiH in 2001 with its first Consumer Protection Act (CPA). The first CPA did not yet contain a comprehensive system of collective redress. Due to a lack of application in practice, the CPA of 2001 was repealed in 2006 by a new CPA, which still made use of many parts of the old CPA from 2001. However, the new CPA had three significant influences: EU consumer protection directives, German law and U.S. legislation. Harmonization with EU law took place for obvious reasons. Although the SAA was only signed some years later,Footnote 31 BiH started to voluntarily harmonize its legislation with EU law from 2000 onwards. One of the expressed goals of the CPA of 2001 and 2006 was to harmonize it with EU law. A comprehensive study on the level of harmonization focusing mostly on substantive aspects had already been carried out some time previously.Footnote 32

The influence of German law is more difficult to trace back. Namely, the major reform of the Yugoslav Law on Obligations which took place in BiH was finalized with its Draft Law on Obligations in 2003, and this was done under the strong influence of Prof. Helmut Rüssmann, a German Professor of contract law, who led the team on reforms supported by the German organization GTZ (now GIZ). The reform did not find its way into the legislative procedure for three years because of a disagreement between the political parties which wanted to have it adopted as one law at the state level (representatives of the Federation of BiH), or two similar laws at the entity level (representatives of R. Srpska). The Draft Law of Obligations of Bosnia and Herzegovina 2006 (BDLO 2006)Footnote 33 found its way into the legislative procedure at the state level but failed in 2006. The Draft Law of Obligations would have transposed 14 consumer protection directives, but was never enacted.Footnote 34 During that same year, 2006, the new CPA was enacted. When engaging in the reform of the CPA in 2006 many solutions from the Draft Law of Obligations were copy-pasted into the CPA and thereby German law also found its way therein. However, the German influence is more limited to the substantive provisions of the CPA.

The U.S. influence on the Consumer Protection Act was due to the fact that the legislative reform of 2006 was supported by the U.S. legal reform programmes. The new provisions on collective redress in the CPA of 2006 are likely to have come from the U.S. side, because they were not inspired by the Draft Law of Obligations, German Law or EU law, and could also not be found anywhere in the former Yugoslav law, whereas all of the other changes can easily be attributed to one of the four influences.

4.2 A Different Collective Redress Mechanism in the CPA of 2006

4.2.1 Introduction

The CPA of 2006 introduced several remedies for consumer protection. It is possible to file for an injunction and to claim individual damages as well as ‘damages to the collective interest of consumers’. It is interesting that the imprecise formulation of ‘damages to the collective interest of consumers’ has even been adopted in the CPA of R. Srpska. However, even more attention is devoted to the plurality of legal persons charged with consumer legal protection.Footnote 35 Many administrative bodies, but also consumer associations and a specialized Ombudsman for Consumer Protection have the right to initiate legal proceedings before the courts. In the following the remedies available under the CPA will be briefly analyzed in isolation from the bodies that are competent to initiate proceedings before the courts. The CPA of R. Srpska also foresees the possibility of consumer arbitration before the Chamber of Commerce of R. Srpska, but it is still unclear whether this mechanism has been truly established as the relevant provisions thereof are somewhat unusual.Footnote 36

4.2.2 Available Remedies

The remedies available to consumers under the CPA of BiH are numerous but remain underdeveloped. They do have the potential to be effective in practice, but only in a state which already has some tradition of consumer protection. However, in BiH the courts, especially in new legal areas, require very clear instructions as to their authority, otherwise they have a tendency of more easily dismissing a claim. Injunctions

The possibility to file for an injunction is the clearest provision under the CPAs.Footnote 37 But even the provision on injunctions still leaves room for debate. Namely, the courts must order the cessation of an act that violates the provisions of the respective CPA, and ‘which harms the collective interest of consumers’. It seems that harming the collective interest (and not just an individual interest) of consumers is an additional requirement for filing for an injunction. This means that a violation of the CPA is not enough to file for an injunction and that a consumer whose individual interests are being violated cannot do so either, which obviously cannot be true. Consumers would be best served if the courts simply disregard this addition of the collective interest which only makes it unnecessarily more difficult to file for an injunction. It is further interesting that the court may order the publication of the judgment or request the losing party to make a corrective public statement on the matter (Art. 122(2) and Art. 136(2) CPA of R. Srpska). The other available path to ordering a cessation of the conduct in question is to file a complaint with the inspection authorities. But this remedy has been formulated under Article 119 CPA of BiH and Article 127 CPA of R. Srpska so as to only apply in the case of individual consumers against individual traders. Collective Redress Against Unfair Contract Terms

A special provision is devoted to a violation of the provisions on unfair terms where a procedure may be initiated jointly or individually against one or more traders from the same economic sector or their representative associations which recommend the same practice or the same or similar unfair terms to be applied. The provision is generously formulated in that it makes it possible for a joint lawsuit to be instigated against traders from the same economic sector and which recommend similar unfair terms. This generous formulation has not made a positive contribution to its use. While it may be expected that collective disputes on unfair terms in consumer contracts occur relatively often, there is as yet no court case to be reported on this matter in BiH. Even the most evident problem of foreign currency clauses in credit agreements denoted in Swiss Francs, which for the greater part related to unfair contract terms, have not inspires any consumer association to file a collective claim. The circumstances were dramatic considering that dozens of consumers had committed suicide because they could not repay the loans and their monthly repayment rates sometimes more than tripled. But apart from some out of court settlements, nothing further occurred to the benefit of consumers in BiH, except for a few penalties of small amounts ordered by the courts at the initiative of inspectors This is completely opposite to what had occurred in neighboring Croatia, where the collective claim went from the ordinary courts all the way up to the Constitutional Court, which eventually ruled in favor of the consumers, until a special law on the matter was adopted thereby placing Croatia in the position of a defendant in several ICSID proceedings initiated by banks.Footnote 38 In Serbia the problem was finally resolved by the Supreme Court of Cassation in a procedure for contested legal issues in accordance with Article 180 of the Serbian LPA and this resulted in a special law on the conversion of loans in Swiss Francs.Footnote 39 The court issued its legal opinionFootnote 40 that foreign currency clauses are null and void unless the bank proves that it has also taken out loans to serve as credit and that the consumer has been fully informed about the economic risks and financial consequences involved.Footnote 41

In Bosnia and Herzegovina the Supreme Court of FBiH had issued a legal opinion, some three years before the Serbian court did the same, in similar proceedings for contested legal issues with exactly the opposite result.Footnote 42 In both Serbia and Bosnia and Herzegovina the request for an opinion on a contested legal issue may be filed by a court of first instance or at the request of a party.Footnote 43 It needs to be emphasized that the provisions of the Law of Obligations which were interpreted by the courts in Serbia and both entities of Bosnia and Herzegovina are identical as they both originate from the same Yugoslav Law of Obligations. What is highly problematic is that the courts of both countries issued their opinions based on this Yugoslav Law of Obligations from 1978 and not based on the stricter provisions on unfair terms as contained in their respective Consumer Protection Acts. This shows that the Consumer Protection Act is still very far from being applied in practice. Damage to the Collective Interest

The most surprising provision of the CPA in BiH, which was also reproduced in the CPA of R. Srpska, is the one on collective redress for damages. It is short and succinct: ‘Within the same procedure, the institution or association has the authority to request compensation for damages caused to the collective interest of consumers’.Footnote 44 And that is it, not a single word more on how such an action shall take place. What we do know is that the wording ‘within the same procedure’ primarily refers to the procedure on injunctions, but may also be interpreted to encompass proceedings on unfair terms.Footnote 45 We also know that for initiating proceedings on collective damages, only a governmental institution that is competent to initiate consumer proceedings or a consumer association has standing in this respect. The CPA laws are quite generous and precise when it comes to representative actions and do not give rise to too many issues on the question of who may file a representative action, as will be further explained below. But too many questions are left open with this provision. Do we have an ‘opt-in’ or ‘opt-out’ system, how will consumers be informed, what are the effects of the final decision for future claims when it comes to the relationship between individual claims and this collective request? What is striking and causes even more problems from the perspective of practicability is that there are no indications as to how the damage to the collective interest of the consumers shall be calculated. A claim for damages in BiH simply has to contain a concrete amount of requested damages, otherwise it will be immediately found inadmissible. The provisions of the CPAs of BiH and R. Srpska were adopted at the time when the LPAs did not further specify collective redress. Therefore, the provisions were simply impossible to enforce in practice. The LPAs of FBiH and R. Srpska, as will be explained under Sect. 5, with their reforms in 2013 and 2015, did introduce provisions on collective redress. So the final word on the possibility to file a claim for damage to the collective interest of consumers will be further provided below.

4.2.3 Standing Before the Court Ombudsman for Consumer Rights

Bosnia and Herzegovina belongs to a relatively small number of countries that have a specialized Ombudsman for Consumer Protection which was established under Article 100 CPA of BiH. Pursuant to Article 100(1) CPA of BiH, the Ombudsman Institution is an independent public institution established with the aim to promote good and efficient implementation of policies related to consumer protection in Bosnia and Herzegovina. The Ombudsman describes itself as the ‘representative of consumer interests’, representing and defending consumers in both individual cases and in the general media.Footnote 46 Furthermore, it is considered to be a special independent body that is authorized to undertake investigative actions and to publicly criticize, as well as to educate and strengthen a weaker party in consumer relations (consumers), and to advise, publish reports, give instructions and orders, all for the purpose of advocating and defending the collective interests of consumers.Footnote 47 For the purpose of this analysis it is important to note that the competences of the Ombudsman for Consumer Protection comprise the right for the Ombudsman to initiate proceedings before the competent court both for an injunction and for compensation claims concerning the collective interests of consumers as stated under Article 103a) and c) CPA of BiH. The wording of Articles 120 and 121 CPA of BiH shows that the Ombudsman may initiate proceedings also because of unfair contract terms.

It should here be noted that the concept of collective protection by the institution of the Ombudsman should represent, as a rule, an alternative way of dispute resolution, while most of the duties of the Ombudsman will be by way of investigative actions and inquiries outside the scope of the presented facts.Footnote 48 This is how we should perceive the most important role of the Ombudsman for Consumer Protection. This institution is certainly not supposed to be a substitute for consumer protection provided by the courts, nor would it have the necessary capacity to do so.Footnote 49 Based on annual reports submitted by the Ombudsman for Consumer Protection one may conclude that its primary orientation is not acting upon individual consumer complaints and objections. Besides, the Ombudsman has clearly recognized the advantages of the preventive role of collective protection measures.

The reports of the Ombudsman for Consumer Protection demonstrate year after year that the largest number of consumer complaints and objections relates to public utility services (telecommunications, electricity supplies and heating), while the banking sector occupies second place. Activities undertaken in this regard have been very different, from the most decisive action of bringing a collective redress action before the Municipal Court of Mostar in 2012,Footnote 50 to instructions to the BiH Federal Government to overturn its decision that the Ombudsman as elaborated was in contravention of the CPA,Footnote 51 to recommendations addressed to the legislator to regulate the issue of guarantors,Footnote 52 as well as participation in the improvement of other national laws, mostly in the area of financial services, such as the national laws on banks, banking agencies, micro-credit organizations and the protection of guarantors.Footnote 53 However, one of the aspects which significantly affects the work of the Ombudsman is the rather modest budget available to this institution. Hence, references are frequently made to Article 104 CPA according to which ‘in performing its duties the Ombudsman for Consumer Protection in Bosnia and Herzegovina shall give preference to those problems which have the highest priority for consumers, and that it is not authorized to undertake measures with regard to consumer complaints that are of lesser importance. ‘. This implies that the focus of the Ombudsman Institution is placed on collective measures to be undertaken in areas where the number of complaints is larger, whereas, due to a lack of funds, numerous individual consumer complaints will remain unanswered.

The first and only collective claim submitted by the Ombudsman Office for Consumer Protection was before the Municipal Court of Mostar in 2012 involving the telecommunications sector and it was against the public company HT Eronet. In 2011 the Ombudsman had submitted a special report on the telecommunications sector which was disseminated to operators as well as to the Regulatory Agency for Communications in Bosnia and Herzegovina, but the alleged violations of the CPA had been committed by the operators. In conclusion, the Municipal Court of Mostar issued a decree on 8 October 2013 declaring that it had no jurisdiction in the legal matter at hand and that all procedural acts undertaken were to be declared null and void and the claim dismissed. In the said decision, the Municipal Court of Mostar stated that the Law on the Courts of FBiH prescribes that the competences of the first instance courts relate to civil law relations and disputes, as well as business law relations and disputes, whereas in the concrete case it concerned an administrative procedure which fell within the competence of the BiH Regulatory Agency for Communications.Footnote 54 This shows a common misunderstanding of consumer law in BiH as many believe that it is a legal field related to inspections and offences and not to contracts and civil law.

In November 2014 the second instance court demonstrated good judgment when it decided, on appeal, to admit the claim and the disputed decision was thereby annulled while the case was referred back to the original court for a new procedure and adjudication.Footnote 55 The Ombudsman Institution stated that the Municipal Court of Mostar had then granted the claim submitted by the Ombudsman in full and had instructed the respondent to cease the practice of providing for certain actions in the General and Special Conditions on Telecommunications Services that were contrary to Articles 40, 41, 93 and 96 of the Consumer Protection Law.Footnote 56 However, at present there is, as yet, no information on this final judicial decision.Footnote 57 Consumer Associations

The Law on Consumer Protection has paid considerable attention to the establishment and operation of consumer protection associations and has regulated their activities in the area of collective protection. Firstly, pursuant to Article 111(1) CPA, activities related to consumer protection are carried out by consumer associations, which by means of their registration in the registry of associations, in accordance with the law, acquire the status of legal persons. In addition, in accordance with Article 111(2) CPA, consumer associations are non-profit, non-governmental organizations and cannot engage in commercial activities. Consumer protection associations are mostly established in the form of citizens’ associations, in accordance with three Laws on Associations and Foundations in Bosnia and Herzegovina. In BiH, such associations are also frequently registered at the cantonal level.Footnote 58 All three of the laws equally provide that in order to establish an association, it is necessary to have three founders, who may be either legal or natural persons. Furthermore, registration under the Laws on Associations and Foundations in Bosnia and Herzegovina is voluntary, by way of which the registered party acquires the status of a legal person. However, if an association wants to enjoy the status of a consumer protection association pursuant to Article 111(1) CPA it is provided that registration is compulsory and the acquisition of the status of a legal person is derived from that registration. That is why all consumer protection associations on the territory of Bosnia and Herzegovina have been registered in one of the registries of associations at the BiH level.Footnote 59 It is important to highlight the fact that consumer protection associations are only comprised of three members who acquire locus standi for collective protection, while the necessary conditions in comparative law are much more demanding and more difficult to meet.Footnote 60 Throughout the last decade there have consistently been between 10 and 20 active consumer associations in BiH which have received some (very limited) public funding.

Furthermore, according to Article 112 CPA of BiH, consumer associations are established by consumers for the purpose of the representation and protection of their rights and these associations have to act independently of vendors, importers, suppliers and service providers. The intention behind this is to legally protect against the establishment of fictional associations which may advocate against consumers, as well as associations that are established for the sole purpose of causing harm to competitors.Footnote 61 This regulation has not been further elaborated, so it will be interesting to see in practice how a conflict of interest will be established and what will be the consequences thereof.

According to Article 112(2) CPA of BiH, consumer protection associations are authorized, among their other competences, to ensure the legal protection of the individual and the collective interests of consumers as well as providing other forms of assistance for consumers when exercising their rights. We can readily interpret this as also initiating collective claims. In fact, Article 121 CPA contains an explicit provision according to which institutions and associations, as well as all other interested parties in the application of collective redress arising from Article 98 CPA, are authorized to initiate a procedure before the competent court. Consequently, consumer associations are fully authorized to file for injunctions and to initiate claims related to unfair terms and for damage to the collective interest of consumers.Footnote 62 The generous provisions on consumer organizations are fully in line with Article 5 of the EU Directive on consumer representative actions.

Concerning collective redress in the Federation of BiH in the area of prohibited forms of advertising, this possibility was introduced by Article 7 of the Law on Prohibited Advertising of 2016.Footnote 63 It is stipulated therein that ‘sellers, sellers’ associations, advisers, as well as other interested parties which have a legal interest in individual or collective protection against prohibited forms of advertising may request, by way of a complaint endorsed by the court, that such advertising be stopped.’ There was a need to introduce this regulation as this area was not sufficiently regulated in the CPA of BiH,Footnote 64 contrary to the CPA of R. Srpska. We should not forget that consumer associations pursuant to Article 23(c) of the Competition Law of BiH may initiate procedures for consumer protection before the Competition Council if such protection is included within the authority of this body.

An example thereof is the Consumer Association (‘Klub potrošača Srednje Bosne’) in Travnik, that is registered at the registry of the Central Bosnian Canton, which requested the BiH Competition Council to provide for consumer protection against a prohibited agreement based on the Competition Law. The request was to examine a contract between the city of Travnik and the energy provider ‘Unis energetika’ which had an exclusive right to supply energy. The contract stipulated that the utilization of heating energy was obligatory for all citizens, but if some citizens were to choose not to make use of this energy, then 25% of the fixed expenditure rate would still be charged for maintenance purposes. Furthermore, the standard contract entered into with consumers anticipated that the contract was to be concluded for an indefinite period of time which could not be avoided by consumers, while at the same time the service provider could decide to terminate the contract unilaterally. The Competition Council found that violations of the Competition Law had occurred in numerous clauses contained in the contract. More specifically, it concerned an abuse of a dominant position on the market and a limitation of market or technical development to the detriment of consumers.Footnote 65

This is certainly a positive example since the said consumer protection association had submitted a request for the protection of a large number of affected consumers, which was ultimately successful. At the same time, it is also an example of the first collective redress brought by a consumer protection association in Bosnia and Herzegovina. It should here be noted that this first successful procedure was conducted following substantive and procedural regulations introduced by the Competition Law, and not under the Law on Consumer Protection and the Law on the Litigation Procedure. This suggests that consumer protection associations that have standing to file lawsuits before the courts prefer a simpler and less expensive option for the submission of complaints to the Ombudsman. The Office of the Ombudsman then tries to resolve contentious issues by submitting an opinion or issuing instructions.

In another area of the law introduced in BiH because of harmonization with EU law, namely, the prohibition of discrimination, the role of associations in collective redress has been very significant and successful. In the area of the prohibition of discrimination, another Ombudsman, the Ombudsman for the Protection of Human Rights, generally issues opinions or recommendations to the alleged offenders.Footnote 66 However, in cases where the offender has disregarded the recommendations provided, some associations, above all the association ‘Vaša prava’ [Your Rights],Footnote 67 bring a collective redress action complaint before the BiH courts, whereas recommendations issued by Ombudspersons are only included as evidence in a lawsuit. In any case, the ambiguous position of case law with regard to recommendations issued by Ombudspersons resulted in amendments to the Law on the Prohibition of DiscriminationFootnote 68 in 2016, to the effect that Article 15 paragraph 9 of the revised Law on the Prohibition of Discrimination now expressly states that in cases where a party includes recommendations issued by the Ombudsman for the Protection of Human Rights as evidence, the court is obliged to take these recommendations into consideration. Such a provision does not exist in the Consumer Protection Act of BiH, simply because of a lack of practice which would make it necessary to address this issue. Moreover, it is explicitly provided that associations, pursuant to Article 17 paragraph 1 of the Law on the Prohibition of Discrimination, may join as a party to the proceedings in addition to the right to raise an issue of collective redress at their own initiative pursuant to Article 17 paragraph 1 of the Law on the Prohibition of Discrimination. This amendment has been introduced in practice because of some problems which had occurred concerning interference by associations, even though such interference is allowed in accordance with the Law on Litigation Procedure. Again, in the area of consumer protection, there have been no legislative amendments due to a lack of practice.

The experience with anti-discrimination law shows that we should not readily conclude that the judicial system of BiH is not amenable to collective redress, but rather we need to look at the problem of why consumer associations have not filed collective claims. This seems to be the result of the organizations’ lack of financial stability. The organizations depend heavily on finance received from public funds, which is very limited. That is why they generally choose the less expensive options of simply filing complaints to the Ombudsman for Consumer Protection or in rare cases to the Competition Council, instead of initiating court proceedings. Considering that the registration of consumer organizations in BiH is very easy and requires almost no available funds, the whole system is very vulnerable to potential abuse by traders if it starts to be used extensively in practice. It would be better to have a more selective process for public funding so that more funds could be granted to a few leading organizations and simply to put more emphasis on quality rather than quantity.Footnote 69 So far, no consumer association has managed to establish itself in such a way that it attracts more support and importance in practice.

5 Legislative Reform of Collective Redress in the Litigation Procedure Act

Some years after collective redress was introduced in the CPA of BiH and R. Srpska, and in the Anti-discrimination Act, the LPAs of FBiH and R. Srpska introduced a chapter on ‘claims for the protection of collective rights and interests’. Both enacted identical reforms, which started at the same time, but were finalized in R. Srpska in 2013 and in FBiH in 2015. The new chapters are to a large extent based on the Croatian reform from 2011.Footnote 70

The LPAs as the main procedural acts on civil disputes in B&H aim to provide a general platform for collective redress. That is why the chapter on collective redress starts by allowing all institutions, bodies and associations which are authorized by special laws to file for collective redress to do so subject to two conditions: their registered or legally determined duties include the protection of legal interests; and there needs to be a serious violation of a collective interest or a serious threat thereof. It is up to the courts to decide when a violation or the threat thereof is serious. But this limitation to only serious harm can hardly be justified. There is simply no reason why there could not be a possibility to collectively file a claim for an ordinary violation of the law. This provision illustrates what will be further emphasized below, that the legislator seemed to be fairly concerned about a possible abuse of collective claims and instead chose a more restrictive approach to collective redress.

When analyzing what is meant by a collective interest, both Article 453a(2) of the LPAs of FBiH and RS explicitly list interests of consumers as an example of public interests which deserve protection. Further, a collective claim may be filed for an injunction, declaratory relief determining that consumers’ rights have been violated, interim relief, the publication of the judgment in the media, condemnatory relief for the performance required to mitigate damage or to prevent further damage, and interim relief under Article 453e LPAs of FBiH and RS.Footnote 71 The list is quite detailed, although some provisions have become redundant, because they may provide very useful guidance for the courts, considering the novel character of the remedy.

As one can see from the list of possible claims, an important remedy is lacking, and that is a collective claim for damages. Article 453(c) of the LPAs of FBiH and RS clarify that only individual claims for damages may be filed. This provision ensures that findings in judgments on collective claims, e.g. that consumers’ rights have been violated, have binding effect for future individual claims for damages. This shows that the ‘collective consumer interest’ under Article 453(a) of the LPA is not a simple quantification of individual consumer interests, because such a sum could easily be quantified in a collective claim. The legislator had in mind the supra-individual interest of one collective,Footnote 72 which makes it less suitable for a collective claim for damages. This mechanism has been adopted primarily to eliminate undesirable behaviour from the market, regardless of to what extent consumers’ subjective rights have been violated and how many consumers are involved.Footnote 73 The great disadvantage of this approach is that in the follow-up procedure consumers not only have to prove their individual damage, but also the link between the illegal behaviour and the damage, which can be very costly and include technical and expert opinions.Footnote 74 It is further in obvious conflict with the EU Directive on consumer representative actions, which under Article 5b(5) requires that consumers will not be forced to bring separate actions for the recovery of damages. Article 5b(8) of the EU Directive on consumer representative actions goes even further and requires that a collective claim for damages may not be conditioned by a prior establishment of a violation by a court or administrative body. Both provisions will require a reform of the current solution on collective claims for damages under the LPAs.

Still, the collective claim has many advantages for consumers. But it is also clear that the LPAs have eliminated any ambition of allowing collective claims for damages provided by the CPA of BiH and R. Srpska to take place in practice. When analyzing the short provision of Article 123 CPA of BiH and Article 136(5) CPA of R. Srpska above, it was already emphasized that the provision leaves too many essential questions unanswered and it really needs further clarification in the LPA to become a practicable tool. However, the opposite has occurred, as the LPAs have simply decided against collective redress for damages. This also provides an answer to the question addressed in the introduction to this paper: how can different remedies introduced under different comparative influences work together? In this particular case, they simply exclude each other with the more restrictive approach prevailing. Nevertheless, the BiH legislator will eventually have to enable collective claims for damages as envisaged by Article 123 CPA of BiH and Article 136(5) CPA, once Article 5b(5) of the EU Directive on consumer representative actions will be transposed in BiH.

One important question is left unanswered by the LPAs and that is whether collective claims interrupt the statute of limitations. So far, there has been no case law in BiH which could provide an answer to this question. However, considering that the reform of the LPA in BiH has introduced provisions which are almost identical to those in the LPA of Croatia, it may be important to look at the answer provided by the Croatian Supreme Court in 2018. When asked this very same question with regard to similar provisions, the Croatian Supreme Court decided in favor of interrupting the statute of limitations and stated that with the finality of a decision on collective redress proceedings the statute of limitations will start to run once again.Footnote 75 This reasoning is based on the effectiveness of collective redress which would be lost and rendered meaningless if consumers would need to initiate their claims for damages before the collective proceedings had ended. Although the courts in BiH are certainly not bound by the decisions of the Croatian Supreme Court, especially at the level of the second and third instance courts, they are likely to be influenced by these decisions. A further argument for following this approach may be found in Article 11 of the EU Directive on consumer representative actions, which explicitly requires that pending collective proceedings for an injunction must suspend or interrupt periods of limitation for potential redress claims. Even before the EU Directive on consumer representative actions is transposed into the legal system of BiH, based on the harmonization clause under Article 70 of the Stabilization and Association Agreement, such an interpretation needs to be followed by the courts in BiH.

Of course, we could take a formalistic view and look at what would happen if the CPA is in conflict with some other law. Article 1(2) of the CPA of BiH provides that the law which is more favorable to the consumer shall have priority. But the courts would always consider the CPA to be substantive law which may only be applied to the extent that the LPA allows this. It is highly unlikely that the courts would consider Article 1(2) of the CPA to also apply to a conflict with procedural laws. Thus far, and until the LPA is subject to a new reform, Article 123 CPA of BiH and Article 136(5) CPA of R. Srpska remain non-enforceable.

The more restrictive approach adopted by the legislator is not only visible in serious violations of collective interests and the exclusion of collective claims for damages, but also in the possibility for punitive damages to be claimed from the alleged victim. The legislator has gone as far as to protect perpetrators from an abuse of collective claims by introducing something which is akin to punishment for filing baseless collective claims. Firstly, in Article 453 (h)(1)–(3) LPAs of FBiH and RS the legislator makes it possible for the alleged perpetrator to file a claim for an injunction, declaratory relief determining that consumer rights have not been violated, the publication of the judgment in the media as well as damages against both the organization filing the collective claim and/or the alleged victims in whose name the claim has been filed. The fact that the alleged perpetrator can file for damages probably finds its justification in that its individual damages can be more easily determined compared to the collective damage which has been done to consumers’ interests. In fact, consumers may also file for individual damages.

But what is striking is the possibility of the alleged perpetrator to file a claim under Article 453(h)(4) LPAs of FBiH and RS for ‘compensation of special damages whose amount the court will determine within its sole discretion’ when the collective claim is ‘obviously unfounded’ and when, because of the proceedings and the media coverage, the reputation and business interests of the perpetrator have been seriously harmed. It is unlikely that the legislator had intended to make a special provision for compensation for reputational damage, because such damages are already included in any standard claim for damages filed by a businessperson and they would not be called ‘special damages’. These are very likely to be punitive damages which will discourage collective claims as there is always a threat of being punished by the court and thereby having to pay ‘special damages’ to be determined at the ‘sole discretion’ of the court. Punitive damages are simply unconstitutional in BiH, because any punishment for illegal acts is only within the competence of criminal law. Furthermore, damages cannot be determined at the sole discretion of the court in civil proceedings, because they have to have their basis in the actual damage suffered and cannot exceed their purpose of compensation, instead of punishment or general prevention.

This above provision of the new chapter on collective redress which allows the perpetrator to file for punitive damages leaves a bitter taste to what should be a new powerful remedy to protect the public interest, such as consumers’ or environmental interests. Although any reasonably competent lawyer in Bosnia and Herzegovina would hopefully raise a constitutional defence against a claim for punitive damages, it shows that the narrative of the chapter was to cautiously introduce new collective remedies by paying more attention to the protection of the perpetrator than the victim. Namely, the law has not defined how consumers should opt into collective proceedings, how they will be informed, what kind of effects the judgment will have on consumers who have not opted in, all of which would be valuable to enable the functioning of the provisions in practice. The only way that this provision could be used in a constitutional matter is that the businessperson in question bases its request on the actual damage that its business practice and reputation have suffered as a result of the collective claim and the media coverage. This may be useful especially for legal persons who, under the conservative practice of the BiH courts, find it difficult to prove the amount of immaterial damage suffered. The sole discretion of the court may allow it to determine immaterial damage even without firm evidence of the actual immaterial damage suffered by the legal person in question.

The legislator has not even regulated whether the collective proceedings under the LPA have to follow the ‘opt-in’ or ‘opt-out’ principle. But it should be strongly assumed that the legislator has followed the ‘opt-in’ option considering the restrictive wording of the chapter and the legal tradition in BiH. We can also derive this interpretation from the possibility for anyone to step in and initiate collective proceedings if that person or body has standing to initiate such proceedings, but only if the original plaintiff agrees to this.Footnote 76 In such a case we would have common joint litigants for whom the dispute could only be commonly decided and where all legal actions undertaken by one joint litigant would have the same effect for all of the remaining joint litigants.Footnote 77 There are situations in which the original plaintiff has an interest in inviting additional organizations or authorities to join the proceedings as joint litigants.Footnote 78 This might be the case when joining the proceedings is necessary for a particular legal effect to be established, when the plaintiff may request the court to invite a third party to join the proceedings.Footnote 79 In addition, any natural and legal person whose interests are protected by the proceedings may also become a joint litigant, but it appears that here the plaintiff does not have to agree to this. In such a case these consumers, depending on the remedy sought, would in most cases be ordinary joint litigants. This is clearly an ‘opt-in’ possibility, once the proceedings are initiated. Although this does not solve the question of the binding effect of the judgment for consumers who have not opted in or who were not even aware of the proceedings, it speaks in favor of an opt-in principle as a general procedural rule in Bosnia and Herzegovina.

Both the CPA and LPA have left unregulated the question of how consumers can become involved in consumer collective proceedings before they are initiated. Of course, a regulation is unnecessary once a tradition of collective proceedings and strong consumer organizations which have the means and knowledge to invite consumers to join proceedings has been established. But at present it seems as if the whole system, after over a decade, is currently standing still because there is no one to actually trigger it. And the most difficult burden for consumer organizations, the initiation phase, has been left unregulated.

Finally, the LPA has not addressed the issue of the jurisdiction for collective redress claims. The topic of jurisdiction for cross-border collective redress has been extensively discussed in the literature,Footnote 80 but this has had no effect on the legislator of BiH which has simply reproduced one chapter from the Croatian LPA. Interestingly, in the same reform when collective redress was introduced into the LPA, for the first time the jurisdiction for claims filed by consumers was introduced allowing for claims to be filed at the place of the consumer’s domicile or residence.Footnote 81 However, this provision only applies to domestic disputes. There is no such provision in the Private International Law Act of BiH,Footnote 82 because it has remained unchanged since it was taken over from the former Yugoslavia. The CPA of BiH does have a very unfortunate provision on jurisdiction for cross-border consumer disputes. stating that for contracts concluded in BiH between a domestic consumer and a foreign trader there is an ‘obligatory prorogation of jurisdiction in favor of the court of BiH’. Any clause that is contrary to this provision is null and void under Article 97 of the CPA of BiH. Furthermore, Article 97 of the CPA of BiH provides that any contract concluded between a domestic consumer and a foreign legal or natural person, as well as any distance selling contract, regardless of the seat of the trader, will be deemed to be a valid contract concluded in BiH (!?). The wording of this provision suggests that a clause on the mandatory jurisdiction of BiH courts is an integral part of every consumer contract concluded in BiH and every contact with a consumer who is a national of BiH is a contract concluded in BiH. This provision, which uses nationality as a connecting factor for consumer contracts, is highly unusual for the legal system of BiH and seems to be another unfortunate legal transplant, with its origin being unknown. The most fortunate aspect of this provision is that it is well hidden in the CPA and is still to be discovered by the courts. It is highly likely that the legislator here aimed to provide exclusive jurisdiction for the courts in BiH, which would mean that no foreign judgment issued against a consumer who is a national of BiH, regardless of his/her residence (!!), could be recognized in BiH under Article 89 of the Private International Law Act of BiH and that a prorogation of jurisdiction in favor of foreign courts, even after the dispute arises, would not be allowed under Article 49 of the Private International Law Act of BiH.Footnote 83 In any future reform, this provision simply needs to be removed.

From the perspective of collective redress, the negative consequences of Article 97 CPA of BiH may simply be avoided by interpreting that it only applies to individual consumer claims and not collective redress filed by associations or institutions. An argument in favor of such an interpretation is the use of nationality as a connecting factor, which is simply not suitable for collective redress. Furthermore, such an interpretation has also been supported by the CJEU by using the simple argument that a consumer association is not a consumer.Footnote 84

Lastly, the LPA has not addressed the very important issue of the costs of the proceedings, meaning that the ‘loser pays’ principle also applies to collective consumer claims. This principle is also followed in Article 8a(1) of the EU Directive on consumer representative actions, but the subsequent paragraphs do release individual consumers from the costs of a representative action, unless there are exceptional costs directly caused by the consumer. This means that a consumer association has to bear the risk of paying for the costs of the proceedings. Again, it needs to be stressed that only with appropriate funding for the associations will it be possible to finally trigger the consumer collective redress mechanism in BiH.

6 Conclusion

Consumer collective redress in BiH has been developing for almost two decades. The CPA remained almost unknown until the recession and the crisis involving credit agreements linked to the Swiss Franc. The introduction of collective redress in the LPA made collective redress more acceptable for judges who need to decide on its enforcement. Now BiH may proudly claim that under the LPA consumer collective claims may be filed for an injunction, declaratory relief, interim relief, the publication of the judgment in the media, condemnatory relief and interim relief. In addition, under CPA even claims for damage to collective consumer interests may be filed, but they would probably be dismissed in practice, because the LPA has (for now) shut the door to them. This is the one claim that will need to be (re)introduced when implementing the EU Directive on consumer representative actions. Further, actio popularis has already been possible since 1978, but we are still waiting for it to be applied even in its core area of environmental protection and as a consumer claim even more so. Both consumer organizations and a specialized Ombudsman for Consumer Protection have wide powers to initiate collective proceedings. The attempt to introduce consumer arbitration in R. Srpska has completed the picture of almost all possible collective remedies (except for class actions) being introduced in the legal system of BiH.

But the main question remains: who will finally take a leading role in triggering the system? After the establishment of a specialized Ombudsman for Consumer Protection of BiH it seemed that this institution would take the lead and make a real difference as far as collective redress was concerned. But after one attempt at collective redress before the courts in Mostar, whose outcome is still unknown, the Ombudsman for Consumer Protection decided to go in another direction. It focuses on reports and recommendations, as well as resolving easier tasks which do not require so much effort and so much money. Namely, the funding of the Ombudsman is so limited that there is simply no capacity for it to assume the extensive mantle of collective redress before the courts. And the same problem exists with regard to consumer associations. The public funding of consumer associations is so limited that it barely covers the annual administrative costs of a consumer association and is certainly not sufficient to cover legal disputes against banks, big names in the car industry or any future scandal involving powerful market players. The lack of funding and generous rules on establishing consumer associations obviously also open the door to a potential abuse of consumer associations by traders. Only once the system finally starts to be used will the legislator be able to recognize which of the numerous collective consumer protection mechanisms is redundant and will be able to find more support for the one that is actually applied. Until then, it seems that the motto is ‘the more the better’, because any other existing mottos have demonstrated no positive results.