Over nine months since it was signed into law, the Representative Actions for the Protection of the Collective Interests of Consumers Act 2023 (Act) commenced on 30 April 2024.
Accompanying regulations have also been published prescribing the Forms to be used in connection with certain administrative procedures under the Act. The Forms are also available on the website of the Department of Enterprise, Trade and Employment (DETE).
As discussed in our previous articles on the Act, the most recent of which is accessible here, it transposes the Representative Actions Directive (EU) 2020/1828 into Irish law. The Act allows consumers to take collective legal action before the Irish High Court through a body known as a Qualified Entity (QE). The action is a ‘representative action’ in which the consumers can seek both injunctive relief and/or redress in the form of compensation, repair, replacement, price reduction, reimbursement, or contract termination (redress measures). The definition of trader under the Act is broad, meaning any natural or legal person, private or public, that acts for purposes relating to their trade, business, craft, or profession.
Two caveats apply to the operation of the Act:
- only claims brought on behalf of consumers fall within the scope of the Act, and
- protection under the Act is limited to claims for breaches of the specific legislation listed in its Schedule. This includes data protection, financial services, package holidays, energy, medical devices, and general consumer protection legislation.
Some Practical Pointers
- With the commencement of the Act, not-for-profit consumer organisations from Ireland and other member states, can apply to the Minister for Enterprise, Trade and Employer for designation as a QE.
- Representative actions can be either domestic or cross-border. This means that such actions before the Irish High Court can be brought by Irish QEs (domestic) or by QEs from other member states (cross-border) against traders.
- Ireland and other member states are required to notify the European Commission of the QEs designated to take cross-border representative actions. The Commission has set up an electronic platform EC-REACT to facilitate the submission of this information and to publish a list of these QEs.
- Before a representative action can proceed, the High Court must deem the representative action admissible under section 19 of the Act. It may do so once satisfied that the applicant is a QE.
- Consumers affected by an alleged infringement covered under the Act can request to be represented by a QE in a representative action seeking redress measures by using the relevant Form. A consumer who has notified and paid the prescribed fee (no more than €25) to the QE will be bound by the outcome of the representative action.
- If injunctive relief is sought against the QE, there is no requirement for the consumer to opt-in to such proceedings. QEs must enter consultation with the trader before seeking injunctive relief.
- Save for exceptional circumstances, the individual consumer concerned by a representative action is not liable to pay the costs of the proceedings, even if they are unsuccessful. That responsibility rests with the QE, which has all the rights and obligations of a plaintiff. However, the consumer is entitled to the outcome of any relief granted by the High Court.
The commencement of the Act introduces into Irish law a new form of collective redress for consumers allowing them to access remedies such as compensation, repair, or contract termination against a trader where their rights are infringed. It is significant in that it introduces a new procedure into Irish law to facilitate collective actions, it does not however introduce any new remedies or causes of action. Many organisations will be affected by the Act given its wide scope. To discuss its impact on your business please contact Mary Cooney, Adele Hall or your usual William Fry contact.
