Class actions in Montenegro

  1.  Do you have a specific procedure or procedures for bringing “opt-in” class actions?  If so, please outline such procedure(s) and their key features.
  2. Do you have a specific procedure or procedures for bringing “opt-out” class actions?  If so, please outline such procedure(s) and their key features.
  3. Are there specific rules on standing for bringing claims under these procedures (e.g., that claims can only be brought by consumer associations)?  If so, please summarise those rules.
  4. How frequently are class actions brought in your jurisdiction? Are there any pending changes to your class action rules that are likely to increase the number of claims filed?
  5. Are the procedures for class actions restricted only to certain causes of action/types of claim, e.g., competition claims?  If so, please describe these restrictions.
  6. What types of relief are available, i.e., damages and/or injunctive relief? 
  7. On what basis are damages calculated i.e., compensatory and/or some other basis?
  8. Are punitive or exemplary damages recoverable?
  9. Will domestic law need to be changed to comply with the Representative Action Directive?
  10. Are there special rules for settlement of class actions, e.g., requirement for court approval?
  11. Beyond the existing rules for taking jurisdiction in unitary claims, are there any additional rules on jurisdiction for your class action procedures?  Are there any territorial limitations to who may be members of the class?
  12.  Please describe the “certification” requirements for each of your jurisdiction’s class action procedures, e.g., how similar must the claims be?  Are there any other criteria to be met for the court to approve use of the procedure?
  13. Do you have specialist courts for these procedures?
  14. Are there any special rules for discovery/disclosure for class action procedures that are different to the rules for unitary actions?
  15. Are there any special rules for appeals in class action procedures that are different to the rules for unitary actions?
  16. Can arbitration clauses lawfully contain class action waivers?
  17. Are contingency fee agreements permissible?
  18. What are the rules on cost shifting, i.e., does the losing party ordinarily have to pay the winning party’s costs?  Are adverse costs awards capped?  If so, at what level(s)?
  19. Is litigation funding of class actions permissible?  If so, how prevalent is litigation funding?

1. Do you have a specific procedure or procedures for bringing “opt-in” class actions?  If so, please outline such procedure(s) and their key features.

No.

Still, in order to comprehend current class action legal framework in Montenegro, it is necessary to make one important remark: class actions currently exist in the Montenegrin Consumer Protection Act (“CPA”) only and contrary to the unitary actions, class actions are still not recognised nor regulated by the primary piece of legislation in the procedural area, the Montenegrin Civil Proceedings Act.

Evidence of truly specific nature and sui generis characteristics of class actions in Montenegro is that the current class actions’ legal framework, inter alia, does not include any form of “opt-in” or “opt-out” procedure.

2. Do you have a specific procedure or procedures for bringing “opt-out” class actions?  If so, please outline such procedure(s) and their key features.

Please refer to the answer number 1.

3. Are there specific rules on standing for bringing claims under these procedures (e.g., that claims can only be brought by consumer associations)?  If so, please summarise those rules.

Yes. According to the CPA, following rules apply:

  1. class actions can only be brought by:
    1. the Ministry, other authorities, independent organisations, and legal entities in charge of consumer protection,
    2. consumer associations,
    3. chambers or similar trading associations (each of the aforementioned entities are hereinafter referred to as the “Authorised Persons”).
  2. Condition precedent for bringing class actions in Montenegro is that the Authorized Person previously sent written notification to the entity that harms collective interests of the consumers, stating that it will bring the class action against it if it does not refrain from further harmful actions; class action cannot be brought before the deadline of 14 days as of the filing of said notification is expired.
  3. In class actions the value of the claim is determined by the court in the amount not greater than EUR 5,000.
  4. Even though the class action is brought, consumer/s whom the damage was inflicted by unlawful actions of the trader can request before the competent court in a separate proceeding the compensation of damages, annulment or declaration of the agreement entered into with the trader null and void, i.e. he/she can commence any other proceeding aimed at protection of his/her rights granted under the applicable law.

4. How frequently are class actions brought in your jurisdiction? Are there any pending changes to your class action rules that are likely to increase the number of claims filed?

To our knowledge the first and only class action in Montenegro was brought in the first half of 2020. We expect this event to serve as a milestone in making both legal practitioners as well as the general public more familiar with class actions and their benefits.

5. Are the procedures for class actions restricted only to certain causes of action/types of claim, e.g., competition claims?  If so, please describe these restrictions.

Yes, for the time being class actions are limited to the consumer protection area only.

6. What types of relief are available, i.e., damages and/or injunctive relief? 

Under the applicable law, damages are not available as a relief and that is one of the key characteristics of specific legal nature of class actions’ legal framework in Montenegro. In that respect, note that in Montenegro only the following reliefs can be requested from the court:

  1. that the respondent ceases the breach of consumers’ rights or otherwise acting contrary to the collective interest of the consumers and, if possible, conducting of the required measures to eliminate adverse consequences arising from respondent’s actions,
  2. prohibition of such or similar actions in the future, which violate the collective interests of consumers;
  3. publishing of the court’s ruling (or parts thereof) at respondent’s own expense if it may contribute to mitigating or completely eliminating adverse consequences arising from respondent’s actions;
  4. publishing a correction of unlawful advertising at respondent’s own expense, to the extent applicable.

7. On what basis are damages calculated i.e., compensatory and/or some other basis?

Not applicable – please refer to the answer number 6.

8. Are punitive or exemplary damages recoverable?

No.

9. Will domestic law need to be changed to comply with the Representative Action Directive?

We expect that in the near future class actions will be addressed by the legislature in a substantive and more detailed manner. Also, given Montenegro’s aspirations to join the EU, we also expect that the new legislation is likely to be aligned with all applicable EU acquis.

10. Are there special rules for settlement of class actions, e.g., requirement for court approval?

No.

11. Beyond the existing rules for taking jurisdiction in unitary claims, are there any additional rules on jurisdiction for your class action procedures?  Are there any territorial limitations to who may be members of the class?

Yes. The CPA contains additional rules in that regard. In that sense, territorial jurisdiction of the courts in class actions is determined based on the following criteria:

  1. Place of seat in Montenegro, as the primary criterion (if applicable, as it requires local presence through a business entity, a branch office or at least a business unit in Montenegro)
  2. Place (in Montenegro) where the violation of collective interests of the consumers occurred or where adverse consequences have arisen, as the ancillary criterion (applicable if the respondent does not have a seat, a branch office, or at least a business unit in Montenegro)

12. Please describe the “certification” requirements for each of your jurisdiction’s class action procedures, e.g., how similar must the claims be?  Are there any other criteria to be met for the court to approve use of the procedure?

Due to the fact that the current class actions’ legal framework perceives and regulates class actions partially – as the means for protection of collective interest of the consumers only, class actions have largely sui generis nature and quite limited reach. That being said, “certification” requirements, i.e., similarity of claims are not regulated at all, since class action cannot lead to individual compensation of the consumer, but only to the protection of their collective interest through one of the reliefs mentioned in answer number 6.

13. Do you have specialist courts for these procedures?

No, we do not. Courts of general jurisdiction are granted authority to hear and decide on class actions.

14. Are there any special rules for discovery/disclosure for class action procedures that are different to the rules for unitary actions?

 No.

15. Are there any special rules for appeals in class action procedures that are different to the rules for unitary actions?

 No.

16. Can arbitration clauses lawfully contain class action waivers?

Montenegrin law does not contain any regulations in that regard. Still, we are of the opinion that the aforementioned restrictions and limited scope of current class actions’ legal framework do not create sufficient space for class action waivers to be agreed upon and applied in practice.

17. Are contingency fee agreements permissible?

Contingency fee agreements are not regulated by Montenegrin law.

18. What are the rules on cost shifting, i.e., does the losing party ordinarily have to pay the winning party’s costs?  Are adverse costs awards capped?  If so, at what level(s)?

The CPA remains silent on this topic – thus, the general rules of Montenegrin Civil Procedure Act apply, meaning that the losing party would generally pay the winning party’s costs.

19. Is litigation funding of class actions permissible?  If so, how prevalent is litigation funding?

The possibility of litigation funding is not set forth in the applicable law. Moreover, the current class action legal framework and its most significant aspects and characteristics imply that the litigation funding is not permissible.

See the Overview of the Representative Actions Directive >>
Portrait of Radivoje Petrikić
Radivoje Petrikić
Partner
Vienna
Portrait of Nedeljko Velisavljević
Nedeljko Velisavljević
Partner
Belgrade
Portrait of Nenad Kovačević
Nenad Kovačević
Attorney-at-Law
Belgrade
Portrait of Igor Đorđević
Igor Đorđević
Attorney-at-law for Energy, Banking & Finance, Projects and Infrastructure
Belgrade