The Department of Enterprise, Trade and Employment ("DETE") has announced that regulations have been signed that will fully transpose the EU Representative Actions Directive (the "Directive") into Irish law. As we have discussed in our previous insights (including here), the Directive will allow, for the first time in Ireland, certain "qualified entities" ("QEs") to bring collective domestic and cross-border actions on behalf of consumers impacted by infringements of prescribed consumer legislation.
As we have tracked in previous updates, Irish implementing legislation in the form of the Representative Actions for the Protection of the Collective Interests of Consumers Act (the "Act") was passed last year. The latest regulations include a Commencement Order of the Minister for Enterprise, Trade and Employment (the "Minister", currently Minister Peter Burke TD). This brought the Act, which was signed into law by the President in July last year, into operation on 30 April 2024.
Certain other regulations (namely the Representative Actions for the Protection of the Collective Interests of Consumers Act 2023 (Prescribed Forms) Regulations 2024 and the Representative Actions for the Protection of the Collective Interests of Consumers Act 2023 (Section 29) (Maximum Fee) Regulations 2024)are provided for in section 3 of the Act, namely the separate regulations of the Minister that may be made for "the purposes of [the] Act, including regulations prescribing any matter or thing which is referred to in [the] Act as prescribed or to be prescribed."
Furthermore, certain prescribed forms are referenced throughout the Act, including for example the application form for designation that a prospective QE must use (see section 8(2) of the Act). Forms for use in connection with the administration of the Act have been published on the DETE website pursuant to the Representative Actions for the Protection of the Collective Interests of Consumers Act 2023 (Prescribed Forms) Regulations 2024.
Separately, section 29 of the Act references prescribed information in relation to the fees that may be charged by a QE. The Representative Actions for the Protection of the Collective Interests of Consumers Act 2023 (Section 29) (Maximum Fee) Regulations 2024) provides that the "modest" fee that QEs may charge consumers requesting to join a representative action (as provided for in section 29(1) of the Act), will be capped at €25 per consumer per representative action. As we have discussed in previous updates, the question of how a QE (which is required to be a non-profit organisation) will fund representative actions of this nature in Ireland remains a potential barrier to the practical use of the legislation. This fee is unlikely to represent a viable source of funds for QEs and third party litigation funding continues to be prohibited as a matter of Irish law.
When announcing the new regulations, Minister Burke TD commented:
"This new legislation will improve consumers' access to justice and redress. In particular, it will help groups of consumers whose rights have been breached, either at home in Ireland or in another European country. The legislation allows for a designated Qualified Entity to take a case to the High Court, on behalf of a group of consumers.
Up until now, Ireland had no mechanism for collective redress. This new legislation will greatly strengthen the consumer's position by allowing them to act together with representation from a Qualified Entity.
Collective redress in Ireland will, however, be different to the US class actions system, as only designated not-for-profit, consumer advocacy entities will be able to take a case on behalf of consumers. This will contribute to preventing opportunistic litigation."
Separately, Minister of State, Dara Calleary TD noted:
"This legislation is a welcome development. Not only is it the first legislation of its type in Ireland, it will also significantly improve consumers' access to justice across many areas, like financial services, travel and tourism, energy and telecommunications and healthcare."
We will continue to monitor for developments in this area, including the publication of any bespoke court rules to accompany the new regime and developments in relation to the law prohibiting third party litigation funding in Ireland.
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