Representative Actions for the Protection of the Collective Interests of Consumers Act 2023

PART 1 Preliminary and General

1. Short title and commencement

1. (1) This Act may be cited as the Representative Actions for the Protection of the Collective Interests of Consumers Act 2023.

(2) This Act shall come into operation on such day or days as the Minister may by order or orders appoint either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.

2. Interpretation

2. (1) In this Act—

“Act of 1972” means the European Communities Act 1972;

“Act of 2009” means the Broadcasting Act 2009;

“applicant” has the meaning assigned to it by section 8;

“Commission” means the European Commission;

“consumer” means an individual who acts for purposes that are outside that individual’s trade, business, craft or profession;

“Court” means the High Court;

“cross-border representative action” means a representative action brought by a qualified entity in a Member State other than the Member State in which the qualified entity was designated;

“designation criteria” means the matters specified in subsection (1) of section 8 for designation as a qualified entity;

“directions notice” has the meaning assigned to it by section 10;

“Directive” means Directive (EU) 2020/1828 of the European Parliament and of the Council of 25 November 2020[^2] on representative actions for the protection of the collective interests of consumers and repealing Directive 2009/22/EC;

“Directive 2010/13/EU” means Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010[^3] on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive);

“domestic representative action” means a representative action brought by a qualified entity in the Member State in which the qualified entity was designated;

“enactment” has the same meaning as it has in the Interpretation Act 2005;

“European act” means—

(a) a provision of the treaties governing the European Union, or

(b) an act or provision of an act adopted by an institution of the European Union, an institution of the European Communities or any other body competent under those treaties;

“European Communities” has the same meaning as it has in the Act of 1972;

“European Union” has the same meaning as it has in the Act of 1972;

“infringement” means an infringement of a relevant enactment;

“Minister” means the Minister for Enterprise, Trade and Employment;

“prescribed” means prescribed by regulations made by the Minister;

“qualified entity” means a legal person or public body representing consumers’ interests which has been designated by—

(a) the Minister under section 8(4)(a), or

(b) a Member State (other than the State),

as qualified to bring representative actions in accordance with the Directive;

“redress measure” shall be construed in accordance with section 26;

“register” has the meaning assigned to it by section 16;

“relevant enactment” means—

(a) a European act or a provision of a European act specified in Annex I to the Directive,

(b) an Act of the Oireachtas specified in Part 1 of the Schedule or an instrument under such an Act of the Oireachtas,

(c) a provision of an Act of the Oireachtas specified in Part 2 of the Schedule,

(d) a statutory instrument specified in Part 3 of the Schedule, or

(e) a provision of a statutory instrument specified in Part 4 of the Schedule;

“representative action” means an action for the protection of the collective interests of consumers that is brought by a qualified entity as a plaintiff on behalf of consumers to seek—

(a) an injunction in accordance with section 23, or

(b) a redress measure in accordance with section 26,

or both;

“trader” means any natural person, or any legal person irrespective of whether privately or publicly owned, that acts, including through another person acting in that person’s name or on that person’s behalf, for purposes relating to that person’s trade, business, craft or profession;

“treaties governing the European Union” has the same meaning as it has in the Act of 1972.

(2) A word or expression that is used in the Directive and in this Act has, unless the context otherwise requires, the same meaning in this Act as it has in the Directive.

3. Regulations

3. (1) The Minister may make regulations for the purposes of this Act, including regulations prescribing any matter or thing which is referred to in this Act as prescribed or to be prescribed.

(2) Without prejudice to any provision of this Act, regulations under this Act may contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary or expedient for the purposes of the regulations.

(3) Every regulation made by the Minister under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next 21 days on which that House sits after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

4. Service of documents

4. (1) A notice or other document that is required to be served on or given to a person under this Act shall be addressed to the person concerned by name, and may be so served on or given to the person in one of the following ways:

(a) by delivering it to the person;

(b) by leaving it at the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, at that address;

(c) by sending it by post in a prepaid registered letter to the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, to that address;

(d) by electronic means, in a case in which the person has given notice in writing to the person serving or giving the notice or document concerned of his or her consent to the notice or document (or notices or documents of a class to which the notice or document belongs) being served on, or given to, him or her in that manner.

(2) For the purpose of this section, a company formed and registered under the Companies Act 2014 or an existing company within the meaning of that Act is deemed to be ordinarily resident at its registered office, and every other body corporate and every unincorporated body of persons shall be deemed to be ordinarily resident at its principal office or place of business.

5. Application

5. (1) Subject to subsection (2), this Act applies to representative actions brought on or after 25 June 2023 in respect of infringements by traders occurring on or after that date that harm or may harm the collective interests of consumers.

(2) This Act applies to domestic and cross-border infringements, including where those infringements ceased before a representative action is brought or where those infringements ceased before a representative action is concluded.

(3) This Act is without prejudice to the provisions of a relevant enactment.

(4) This Act shall not affect rules in the relevant enactments in so far as they establish contractual and non-contractual remedies available to consumers for the infringements referred to in subsections (1) and (2).

6. Revocation

6. (1) Subject to subsection (2), the Regulations of 2010 are revoked.

(2)Subsection (1) shall not apply to representative actions that are brought before 25 June 2023 and accordingly the Regulations of 2010 shall continue to apply to those representative actions as if subsection (1) had not been enacted.

(3) In this section, “Regulations of 2010” means the European Communities (Court Orders for the Protection of Consumer Interests) Regulations 2010 (S.I. No. 555 of 2010).

7. Expenses

7. The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Public Expenditure, National Development Plan Delivery and Reform, be paid out of moneys provided by the Oireachtas.

PART 2 Qualified entities

8. Designation of qualified entities

8. (1) An organisation (in this section referred to as an “applicant”) may apply to the Minister to be designated as a qualified entity for the purposes of taking domestic representative actions or taking cross-border representative actions, or both, if—

(a) it is a legal person and can demonstrate in the application 12 months of actual public activity in the protection of consumer interests prior to the application,

(b) its main purpose is one that demonstrates that it has a legitimate interest in protecting consumer interests provided for in a relevant enactment,

(c) it has a non-profit-making character,

(d) it is not the subject of insolvency proceedings and has not been declared insolvent,

(e) it is independent and is not influenced by persons other than consumers, in particular by traders, who have an economic interest in the bringing of any representative action, including in the event of funding by third parties, and, to that end, it has established procedures to prevent such influence as well as to prevent conflicts of interest between itself, its funding providers and the interests of consumers, and

(f) it makes publicly available in plain and intelligible language by any appropriate means, in particular on its website, information that demonstrates that it complies with the matters referred to in paragraphs (a) to (e) and information about the sources of its funding in general, its organisational, management and membership structure, its statutory purpose (if any) and its activities.

(2) An application for designation under subsection (1) shall be made in the prescribed form.

(3) At any time after receiving an application and before determining the application, the Minister may by notice in writing require the applicant to provide additional information to him or her and where the Minister does so, the applicant shall comply with that requirement.

(4) The Minister may—

(a) designate an organisation as a qualified entity, the subject of an application under subsection (1), where he or she is satisfied of the matters specified in that subsection, or

(b) subject to section 9, refuse to designate an organisation as a qualified entity, the subject of an application under subsection (1), where he or she is not so satisfied.

(5) Where the Minister designates an organisation as a qualified entity under subsection (4)(a), he or she shall notify the qualified entity in writing of the designation.

(6) A designation issued under subsection (4)(a) shall come into effect on the date of the making of such designation.

(7) In this section, “legal person” means—

(a) a legal person established in the State, or

(b) a legal person established in accordance with the national law of a Member State (other than the State).

9. Refusal of designation

9. (1) Where the Minister proposes to refuse a designation under section 8(4)(b), he or she shall notify the applicant in writing of the proposed refusal.

(2) A notification under subsection (1) shall include particulars of the following:

(a) the proposal to refuse a designation under section 8(4)(b) and the reason for it;

(b) that the applicant is entitled to make representations in accordance with section 12;

(c) that the applicant is entitled to a review of the decision to refuse the designation in accordance with section 14.

10. Directions notice

10. (1) Where the Minister is satisfied that a qualified entity has failed to comply with an information obligation or any designation criteria, the Minister may, by notice in writing (in this Act referred to as a “directions notice”) to the qualified entity—

(a) inform the qualified entity of such failure and the reasons for issuing the directions notice,

(b) direct the qualified entity within such period as may be specified in the notice to comply with the specified information obligation or designation criteria, as the case may be,

(c) inform the qualified entity that a failure to comply with the directions specified in the notice within the time specified in the notice may result in the Minister seeking to revoke the designation of the qualified entity in accordance with section 11, and

(d) inform the qualified entity that it may make representations in accordance with subsection (2).

(2) A qualified entity that has been issued a directions notice under subsection (1) may make representations to the Minister about the failure to comply with an information obligation or any designation criteria and the Minister shall have regard to any representations made to him or her in deciding whether to proceed with seeking to revoke the designation of the qualified entity in accordance with section 11.

(3) The Minister may withdraw a directions notice at any time, as he or she considers appropriate.

(4) In this section, “information obligation” means an obligation to provide information in accordance with subsection (1) or (4) of section 18 or sections 24(3), 29(2) or 29(4).

11. Revocation of designation

11. (1) The Minister may revoke a designation of a qualified entity under section 8 where—

(a) following a review in accordance with section 13, or a failure to provide information requested in accordance with subsection (4) of that section, the Minister is of the opinion that the qualified entity no longer satisfies the designation criteria, or

(b) the qualified entity has failed to comply with a directions notice issued in accordance with section 10.

(2) Where the Minister proposes to revoke a designation under subsection (1), he or she shall notify the qualified entity in writing of the proposed revocation.

(3) A notification under subsection (2) shall include particulars of the following:

(a) the proposal to revoke a designation under subsection (1) and the reason for it;

(b) that the qualified entity is entitled to make representations in accordance with section 12 regarding the proposal to revoke a designation;

(c) that if the qualified entity does not make such representations, the revocation of a designation under subsection (1) shall come into operation 28 days from the date of the service of the notification;

(d) that where the revocation comes into operation in accordance with paragraph (c), the Minister shall, where appropriate, notify the Commission that the name of the qualified entity should be removed from the list of qualified entities maintained by the Commission in accordance with Article 5(1) of the Directive;

(e) that the qualified entity is entitled to seek a review of the decision to revoke the designation in accordance with section 14.

12. Representations

12. (1) An applicant, notified of a proposal to refuse a designation under section 9 or a qualified entity notified of a proposal to revoke a designation under section 11 may, within 28 days of the notification, make representations to the Minister about such proposal.

(2) The Minister shall have regard to any representations made to him or her under subsection (1) in deciding whether to proceed with the proposed refusal or revocation of the designation concerned and shall notify the applicant, or the qualified entity as the case may be, in writing of his or her decision.

(3) Where a qualified entity makes representations to the Minister in accordance with subsection (1) and unless a review is sought under section 14, revocation of a designation under section 11 shall come into operation 28 days from the date of the notification referred to in subsection (2).

13. Review of designation

13. (1) The Minister shall—

(a) undertake a review of the designation of a qualified entity where concerns are raised by another Member State or the Commission regarding the compliance by a qualified entity with the criteria specified in Article 4(3) of the Directive, and

(b) undertake, at least once every 5 years, a review of the designation of a qualified entity to ensure that the qualified entity continues to satisfy the designation criteria.

(2) For the purposes of a review undertaken in accordance with this section, the Minister may—

(a) inspect and make copies of any books, records or other documents (including books, records or documents stored in non-legible form), or extracts therefrom, relating to the qualified entity,

(b) by notice in writing, request the qualified entity to provide additional information to him or her, and

(c) request any person at the place of work or premises concerned, including the owner or person in charge of that place or premises, to give the Minister such information and assistance as he or she may reasonably require for the purposes of a review under this section.

(3) A person requested to provide information or assistance in accordance with subsection (2) shall comply with a request of the Minister to provide such information and assistance as the Minister may reasonably require for the purposes of the review.

(4) Where a qualified entity fails or refuses to provide information requested in accordance with this section, the Minister may revoke the designation of the qualified entity under section 11.

14. Review of refusal of designation or revocation of designation

14. (1) An applicant whose application for designation is refused by the Minister under section 8(4)(b) or a qualified entity whose designation is revoked by the Minster under section 11 may, within 28 days from the date of the notification under section 9(2) or 11(2), as may be appropriate, request in writing a review (in this section referred to as a “review request”) of such refusal or revocation, as the case may be, in the prescribed form.

(2) The review request shall state the grounds on which the applicant or qualified entity making the request seeks a review of the refusal or revocation, as the case may be.