knowledge 10 May 2024 |

The Representative Actions Act 2023 is commenced; next step is the designation of Qualified Entities to bring the actions

The Act allows for representative actions to be brought on behalf of groups of consumers by designated “qualified entities” (“QEs”) in respect of infringements of a wide range of EU consumer protection laws identified in the Act in areas such as financial services, data protection and telecommunications. A full briefing on the Act can be found here.

The release of a number of statutory instruments gives some detail on how exactly the Act will be implemented (though it is expected more will follow). There are several forms that must be used in conjunction with the Act, which are set out in the Representative Actions for the Protection of the Collective Interests of Consumers Act 2023 (Prescribed Forms) Regulations 2024 (SI 182 of 2024).

These forms include an Application for Designation as a Qualified Entity under section 8 of the Act. The QE must be a legal person with a non-profit character whose main purpose is one that demonstrates that it has a legitimate interest in protecting consumer interests, in addition to meeting other criteria.

A QE may charge a modest fee to a consumer requesting to be represented in a representative action for redress and the Minister has prescribed €25 as the maximum fee that may be charged. In the absence of third party funding and in light of the maximum fee that can be charged, and where unlike some other Member States, Ireland does not have a tradition of well resourced ‘non-State’ not-for-profit consumer organisations, it appears that public bodies such as the Competition and Consumer Protection Commission, the Financial Services and Pensions Ombudsman and the Central Bank of Ireland are the viable options at present to act as a QE.

The Act makes it clear that collective redress can be used for both domestic and cross-border cases - this means that a QE can be designated to initiate either a domestic or a cross-border action. This may be a pertinent consideration for data privacy proceedings where the claim may arise in another Member State because the Act allows QEs designated in other Member States of the EU to apply to the Irish High Court to launch a representative action in Ireland against a trader established within the State.

The Act makes it clear that traders will enjoy the same legal rights and protections as they do in any other civil legal proceedings and there will be provision in the collective redress system to facilitate an out of court engagement for a qualified entity and a trader if they can negotiate an informal resolution to their grievance.

The ability to now apply and be designated a QE’s is a key enabling component of the Act, which is intended to achieve a strengthening and improvement to access to justice and redress for consumers.  We will continue to monitor and provide updates on developments.