On 11 July 2023, the President of Ireland signed into law the Representative Actions for the Protection of the Collective Interests of Consumers Act 2023 (the ‘Act’). The Act transposes into Irish law Directive (EU) 2020/1828 (the ‘Representative Actions Directive’), and allows designated qualified entities (‘QEs’) to bring representative actions on behalf of groups of consumers where there has been a breach of EU consumer protection law. The Act has not yet been commenced, and an element of uncertainty remains in relation to the types of bodies that will be designated as QEs and the manner in which these new representative actions will be funded.
Part 2 of the Act provides that an organisation meeting certain requirements (such as being a legal entity that has a “non-profit-making character” and that demonstrates as its main purpose a “legitimate interest in protecting consumer interests”) may apply to the Minister for Enterprise, Trade and Employment to be designated as a QE, and that the Minister may then grant or refuse this designation. In the Bill Digest that preceded the Act, Senior Parliamentary Researchers Dr Deirdre Halloran and Eoin McLoughlin suggested that bodies with “existing supervisory or enforcement competence in the financial services industry” (such as the Central Bank of Ireland and the Competition and Consumer Protection Commission) may be designated as QEs under the Act. However, it remains to be seen whether these bodies and others will receive this designation.
A further but connected area of uncertainty relates to the manner in which representative actions taken under the Act will be financed. Ireland currently places strict controls on the funding of civil litigation by an otherwise-unconnected third party, and Minister of State at the Department of Enterprise, Trade and Employment Dara Calleary acknowledged during a Dáil debate on 19 April 2023 that “the limitation on access to funding for civil litigation in Ireland is likely to discourage some not-for-profit organisations from stepping forward to seek designation” as a QE. The Minister of State also noted that a report on the law governing the third-party funding of civil litigation by the Law Reform Commission was due to be published in 2024, but that the Government was obliged to move forward with the Act prior to the publication of that report given its obligation to transpose the Representative Actions Directive under EU law. The current legislative position under the Act is that section 29 allows a QE to charge a “modest fee to a consumer requesting to be represented in a representative action for redress”, but that no such charge is permitted in respect of representative actions for injunctive relief.
Click here for the published Representative Actions for the Protection of the Collective Interests of Consumers Act 2023.