Is a class action possible in Lithuania?

Miroslav Nosevic, Senior Associate
Rimante Tamulyte, Associate

 
Article 49 paragraph 6 of the Lithuanian Code of Civil Procedure sets a possibility to launch a class action in protection of a public interest. The question is, however, does it function? The existing Lithuanian case law says it does not.  

A class action is claim, launched by a group of people collectively concerning the same matter and with same demands. It allows aggregating a number of claims into one lawsuit thus saving the claimants from lots of expenses.

The aforementioned provision of the Code of Civil Procedure provides for a class action to be launched “as foreseen in laws”. Up to date no laws foreseeing an actual class action in relation to specific issue or regulating the concept of a class action in general have been adopted. Thus a rather blanket provision of the Code of Civil Procedure stands alone without any supporting laws.

For this reason already in 2009 a regional court and subsequently the Lithuanian Court of Appeal have refused to accept a class action for consideration. The Court of Appeal has stated that the right of a class action, set in Article 49 par. 6 of the Code of Civil Procedure, cannot be realised in practice, because it is not set in law what type of claim could be identified as a class action, what are the requirements for the content of such claim, what is the procedure for launching and examining such claim at the court. Moreover, it is not even clear what would be legal power of a decision, adopted based on a class action. Thus for purely objective reasons, the right to a class action cannot be realised.

It should be noted, that the court kept quiet regarding the allegation by the claimants that this way a person’s right of access to court is violated. However, this argument may be dismissed on the ground that these persons are always free to launch a claim personally.

So while the Lithuanian Code of Civil Procedure in theory provides a possibility to launch a class action, in practice the existing legal regulation with the discussed case law does not allow launching class actions. As the legal regulation stands in Lithuania at the moment, the right of a class action simply does not exist.

However, in July 2011 a class action conception has been approved by the Lithuanian government and the Ministry of Justice is to prepare the first drafts of necessary laws by 2012. Two options for implementing the concept of class action have been discussed: (i) opt-in – where the persons may join a class action by expressing their wish to join in, and (ii) opt-out – where the persons, who have the same interest, are automatically joined to the case and they have to expressly opt out from it, otherwise the decision in the case would be applicable to them. For quite obvious shortcomings of opt-out system, including issues with guarantees of due process as a judgment in such case may be enforced on persons who effectively did not participate in the court proceedings, the suggestion is to follow the opt-in system.

It is unclear when exactly such laws would be passed through the Lithuanian parliament or what would be their content, but obviously it will still take quite some time. Thus for the moment a class action is simply impossible in Lithuanian legal system. Any attempt to launch one should result in refusal by courts to treat it as a class action, instead the court may understand it as several individual claims filed together.