Irish Proposal Brief
GENERAL SCHEME OF REPRESENTATIVE ACTIONS FOR THE PROTECTION OF THE COLLECTIVE INTERESTS OF CONSUMERS BILL 2022
(Awaiting text of final Bill and enaction)
Once finally agreed following pre-legislative scrutiny, the text (“Heads”) of the Irish General Scheme (“the Act”) will transpose the Representative Actions Directive into the national collective redress framework. It does this by creating a procedure for class actions through a new civil litigation mechanism. It is due to take effect on 25/06/2023 and represents a relatively significant change from the existing position in Ireland. The State has previously been an “outlier” within the EU, lacking a legislative class action framework and compensatory collective redress procedure.
- Disputes under the scheme are dealt with under the jurisdiction of the High Court (Head 5) and commence there.
- The Scheme applies on an opt-in basis, with consumers benefiting from representation in an action once they have opted into a collective redress action against a trader who has caused harm.
- Head 3 lays down the Minister for Enterprise, Trade and Employment’s (“the Minister”) wide powers regarding matters in the Act. For example, the Minister can prescribe the maximum entry fee a consumer must pay to a qualified entity (“QE”) to be represented in an action. Court fees can also be removed (giving effect to mandatory provisions Art 20(1)-(2) of the Directive). Head 4 provides for similar powers for the Superior Court Rule Committee and rules of Court for the High Court procedure.
- Only entities designated by the Minister in accordance with the Directive may bring a domestic representative action; for cross-border actions, it is sufficient that an entity is designated as a QE in its own Member State for the action to be brought in Ireland (Head 5).
- When more than one QE join in a cross-border action, one will be designated as a lead entity (Head 7), but all of them will be bound by any final decision.
- A QE can seek either an injunction or redress measures, or both (in the same action), against a trader.
- The scope is defined in Head 6: representative actions against a trader can only be brought for an alleged breach of one of the EU laws found in the Annex to the Directive (also transposed into Irish law in Schedule 1 of the Act).
- It does not affect (non)contractual remedies under EU law or the provisions of the Brussels and Rome Regulations.
- Under Head 7, the QE acts as the claimant party in an action “with all of the existing rights and obligations associated with that position”. Any costs are borne by the entity and not consumers, who themselves are not plaintiffs. Only if they are negligent, for example, will a consumer incur costs.
- Head 8 address limitation by suspending the relevant Statute of Limitations Act (1957—2000) from the time the representative action (for and injunction or redress) is commenced, until the final decision of the Court. This ensures consumers are not prevented from bringing a subsequent action.
- Regarding admissibility, the Court will scrutinise possible conflicts of interest (where there are “justified doubts”), and QEs must disclose to the Court a financial overview of their funds (Head 9).
- The Court may dismiss a manifestly unfounded representative action, or one that has not complied with section’s provisions (Head 9).
- Head 10 confirms that named consumers do not need to opt into an injunctive action. The difference between provisional (interim, ex-parte) and definite (permanent) actions are set out.
- QEs must engage in pre-litigation consultation with traders to resolve an alleged breach before launching injunctive proceedings (the trader has two weeks to engage). The Court will only allow the action to proceed if there is no agreement through consultation. Alternative Dispute Resolution is therefore encouraged, as a pre-litigation step (Head 10).
- Redress procedure in Head 11 provides that consumers whose rights are affected should notify the QE that they want to be represented (which must be done before the defendant trader has “entered an appearance”). Regulations will set out how QEs publish information about their actions. Consumers within and outside the State are notified in the same way and QEs maintain contact with them.
- Consumers who withdraw from the representative action cannot benefit from the remedies obtained. Represented consumers do not need to bring separate actions to obtain the redress benefits they are entitled to under the Courts order.
- Settlements agreed, according to Head 12, are subject to Court scrutiny and may be refused. If approved, they are binding on the trader and each participating consumer, without prejudice to other remedies.
- QEs and traders can use the final decision of Courts and administrative authorities in other Member States as evidence in Irish redress actions (Head 13).
- The Court, under Head 15, can impose “proportionate” penalties on the trader if it does not comply with an injunction; a fine will not exceed €10,000.
- The criteria for the Minister to designate a QE are found in pt. 3, Head 16. The QE must demonstrate 12 months of actual public activity protecting consumer interests and be non-profit making, for example. Designation “will be of indefinite duration” but reviewed periodically.
- To comply with the Directive, the Minister must “facilitate best practice” between QEs in Ireland bringing representative actions.
- Information requirements in Head 21 should be provided to consumers in “a timely and easily understood way”.