Class Actions: An Imminent Disruptor in European Digital Markets
Class actions are becoming a defining dynamic in Europe’s digital economy, giving private claimants new tools to pursue legal remedies ahead of regulatory enforcement. New procedural tools for seeking redress on behalf of large claimant groups – particularly consumers – have made class actions a viable way to challenge the conduct of large businesses in digital markets through private litigation, rather than waiting for regulators to act on behaviour perceived to harm consumers.
This shift is creating new forms of exposure for digital platforms and other substantial online businesses, particularly those that influence how users engage with online services. At the same time, it is giving online retailers, publishers and start-ups a more collective means of exerting pressure and seeking redress.
Litigation is accelerating, but how quickly – and in what form – still depends on where claims are filed, how they are funded and how businesses operate. For digital businesses, whether defending an entrenched position or pushing for change, class actions are a live and evolving pressure point.
Business Models Under Scrutiny
Class actions in digital markets are increasingly focused on the structure of digital ecosystems. Instead of targeting one-off incidents, this litigation is coalescing around design features that govern pricing, access and user interaction – especially where those features apply systemically and at scale.
Direct-to-consumer (D2C) models remain a common entry point for collective actions. Commission structures, in-app purchase restrictions and third-party payment limitations create repeatable patterns that support competition and consumer law claims.
Exposure grows when one company can influence how others participate in the digital ecosystem – for instance, by controlling distribution, advertising or payment channels. Even where conduct is normalised, these embedded dynamics may trigger legal scrutiny if they appear to distort market outcomes. In this context, risk stems less from isolated policies or pricing decisions than from the structure of the commercial model itself.
“It’s not just what a business does, it’s how it structures participation across the market that now invites legal attention.”
Thomas Funke, Partner, Osborne Clarke Germany
While platforms were the initial focus, the logic of these claims is migrating. Legal strategies developed in early platform disputes are now being adapted to challenge a wider range of business models, including those whose operational features – such as data stewardship, interface design or access control – are drawing scrutiny under competition and consumer law frameworks.
As this trend accelerates, exposure is less about whether a company is a platform, and more about how it shapes participation and advantage in digital markets. Increasingly, those design choices are being reinterpreted through today’s legal standards, with claims using evolving regulatory expectations to challenge past conduct.
Backward Claims, Forward Regulation
Meeting new regulatory standards is often treated as a milestone, a sign that risk has been mitigated and scrutiny defused. But in the context of class actions, that confidence can be misplaced. New compliance may feel like protection, but in class actions it can serve as ammunition, supporting claimant arguments that earlier conduct had anticompetitive or exclusionary effects.
Just as regulators might impose fines for previous behaviour and require compliance going forward, private litigants might seek damages for the past and seek access – or other types of specific performance – for the future. Their arguments often rest on counterfactuals: how would the market have evolved if a certain design or restriction had never been introduced? A pricing model or access restriction that now meets Digital Markets Act (DMA) requirements can still be used to anchor retrospective claims, particularly if new rules are cited as evidence of what a competitive baseline should have looked like. Without regulatory findings at the time, companies may find themselves defending past conduct against present-day expectations.
“Even compliant models can become legal battlegrounds when claimants ask: what if you had acted sooner?”
Aqeel Kadri, Partner, Osborne Clarke UK
Compliance, in other words, does not equal immunity. Even practices that have been revised or permitted under current regimes may be scrutinised through a backward-looking lens, as general competition rules apply in addition to the rules for the digital industry. In this environment, litigation strategy must account for shifting narratives, evolving benchmarks as regulatory requirements are reinterpreted in court.
This risk calculus becomes even more complex when layered over procedural variation. As litigation narratives start to take form, their viability and impact are sharpened – or softened – by where they land.
Where Claims Land First
In collective litigation, jurisdiction is not a neutral backdrop, it is a tactical lever. Once a claim theory has taken shape – whether based on past conduct or regulatory comparisons – its momentum often hinges on procedural specifics: how quickly a court moves, whether opt-out mechanisms apply and how easily a claim can be certified or funded.
For digital businesses operating across Europe, this creates a shifting procedural map – one where similar claims may surface in multiple venues, each applying different legal and procedural standards to common facts. Navigating this terrain requires more than local awareness. Messaging must remain consistent across borders, as arguments advanced in one jurisdiction may be scrutinised or repurposed in another. These dynamics are most visible in jurisdictions that have become focal points, owing to procedural frameworks that make collective action more viable.
The UK, Netherlands and Germany remain at the forefront of European private enforcement, supported by efficient court systems, structured procedures and familiarity among funders and claimant firms. But other jurisdictions are gaining ground. Portugal has seen steady growth since transposing the EU’s Representative Actions Directive (RAD) into national law in December 2023, introducing a new opt-out regime and clearer procedural rules for collective redress. Likewise, Spain is drawing increasing interest as it finalises its own RAD implementation – with claimant firms watching closely to see whether opt-out mechanisms will be permitted, a move that could quickly transform it into a key venue for consumer-focused claims.
“We’re seeing strong claimant interest in Spain ahead of the RAD’s implementation. If opt-out mechanisms are adopted, it could become an even more active jurisdiction, especially for high-volume consumer claims that are currently looking for a procedural foothold.”
Rafael Montejo, Partner, Osborne Clarke Spain
While these jurisdictions offer procedural advantages, claimants are not free to file anywhere. Most systems still require a territorial link – a factual or commercial connection to the forum. But once that threshold is met, procedural and funding dynamics often drive where actions are brought. Sophisticated firms assess where collective mechanisms are favourable, where funders are active and where procedural delays are minimal.
While these jurisdictions offer procedural advantages, claimants are not free to file anywhere. Most systems still require a territorial link – a factual or commercial connection to the forum. But once that threshold is met, procedural and funding dynamics often drive where actions are brought. Sophisticated firms assess where collective mechanisms are favourable, where funders are active and where procedural delays are minimal.
Class Action Triggers
The changes discussed above mean that regulators and consumer groups are no longer solely driving enforcement. A growing ecosystem of funders and claimant-side firms is using litigation to obtain redress for large groups. Many of the latter are working in coordination with experienced US class action teams, whose expansion into European markets has brought expertise in pursuing collective claims. Across this landscape, players are actively identifying opportunities to pursue large-scale litigation, sometimes following the path of regulators in other jurisdictions, or replicating private claims brought elsewhere. As regulatory gaps, media scrutiny and market shifts increasingly serve as catalysts, the sources of litigation risk are increasing – with claims emerging from a wider range of triggers and escalating more quickly than before.
Investor sentiment can amplify the pressure. When legal challenges target core revenue models, perceived exposure may ripple through markets well before any finding of liability. For companies operating across jurisdictions, class actions are no longer a secondary risk. As claims emerge from diverse sources and move on unpredictable timelines, collective litigation is becoming a strategic variable – one that shapes commercial decisions and demands anticipatory legal planning, even in the absence of enforcement signals.
Shaping Digital Markets
Class actions are no longer just a legal aftershock. In digital markets, they have become a meaningful way to test business models – sometimes before regulators act, and often with real operational consequences. As claims shift from isolated incidents to structural design features, they are forcing companies to defend both the outcomes they deliver and the structures that produce them.
For firms that influence access, pricing or user experience at scale, litigation strategy can no longer be reactive. Class action exposure can develop quickly when intersecting factors combine to compound risk. Legal teams must therefore track early signals – from product changes and regulatory drift to competitor pressure and funding activity – while also monitoring how legal arguments evolve and travel across jurisdictions.
Contributors
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