Consumer protection – Representative actions

 

SUMMARY OF:

Directive (EU) 2020/1828 on representative actions for the protection of the collective interests of consumers and repealing Directive 2009/22/EC

WHAT IS THE AIM OF THE DIRECTIVE?

It gives powers to organisations or public bodies designated by European Union (EU) Member States to seek injunctive or redress measures on behalf of groups of consumers through representative actions (including cross-border representative actions). This includes seeking compensation from traders who infringe consumer rights in areas such as financial services, travel and tourism, energy, health, telecommunications and data protection, as appropriate and available under EU or national law.

Since both judicial and administrative procedures may effectively and efficiently serve the protection of the collective interests of consumers, it is left to Member States’ discretion as to whether the representative action can be brought in judicial or administrative proceedings, or both, depending on the relevant area of law or relevant economic sector.

KEY POINTS

Qualified entities

Member States designate the entities that will be enabled to bring representative actions on behalf of consumers (qualified entities).

In order to be enabled to bring the representative actions in a Member State other than that of their designation (cross-border actions), the qualified entities must:

• be a legal person that is constituted in accordance with the national law of the Member State of its designation;
• be able to demonstrate 12 months of actual public activity in consumer protection, prior to its request for designation;
• be non-profit-making;
• demonstrate its statutory purpose of having a legitimate interest in protecting consumers’ interests as provided for in the rules of EU law referred to in Annex I to the directive;
• not be the subject of insolvency proceedings and not be declared insolvent;
• be independent and not influenced by persons other than consumers, in particular market operators;
• have an established procedure to prevent such influence and conflicts of interest;
• disclose publicly how it is financed;
• disclose its organisational, management and membership structure, objectives, working methods and activities;
• disclose publicly information that demonstrates that it complies with all the above criteria.

Member States may also apply the abovementioned criteria to the qualified entities designated in advance and enabled to bring domestic actions (in the Member State of their designation). Member States may also designate qualified entities on an ad hoc basis for the purpose of bringing a particular domestic representative action.

The European Commission publishes the list of qualified entities designated for cross-border actions on an online portal, updated as necessary.

Injunctive measures

An injunctive measure is a provisional or definitive measure to stop or prohibit a practice. Both could be used to stop an existing practice or prohibit an imminent practice. It could also include (depending on national law) an obligation to publish the court’s decision or a corrective statement.

The qualified entity does not have to prove actual loss or damage by individual consumers affected by the infringement, or intent or negligence by the trader.

Redress

A redress measure requires a trader to provide remedies such as compensation, repair, replacement, price reduction, contract termination or reimbursement of the price paid, as appropriate and available under EU or national law.

Member States ensure that:

• consumers who explicitly or tacitly expressed their wish to be represented in a representative action (‘opted-in’ or ‘opted-out’) cannot be represented in another representative action or bring individual action with the same cause and against the same trader;
• consumers do not receive compensation more than once for the same cause;
• a redress measure entitles consumers to benefit from the remedies without the need to bring a separate action;
• rules are laid down on time limits for individual consumers to benefit from redress measures.

These remedies are without prejudice to any additional remedies that are not the subject of the representative action.

To avoid a conflict of interest where a third party provides redress funding, Member States that allow that type of funding must ensure, in particular, that:

• decisions of qualified entities are not influenced by the third party funding provider in a manner that would be detrimental to the collective interests of the consumers concerned;
• the representative action is not brought against a competitor of the funding provider or a defendant on which the funding provider is dependent.

Settlements

Member States must ensure that:

• the qualified entity and the trader may jointly propose a redress settlement; or
• the court or administrative authority, after having consulted the qualified entity and the trader, may invite the parties to reach a settlement within a reasonable time limit;
• settlements approved by the court or administrative authority are binding on the qualified entities, defendant traders and consumers concerned, but Member States may lay down rules allowing consumers concerned to accept or to reject the settlement.

Costs of the proceedings

• The unsuccessful party is in principle required to pay the costs of the proceedings.
• Individual consumers in a representative action do not pay the costs of the proceedings, except potentially when the costs were incurred as a result of the individual consumer’s intentional or negligent conduct.
• Member States must introduce rules aiming to ensure that the costs of the proceedings related to representative actions do not prevent qualified entities from effectively exercising their right to seek the injunctive measures.
• Member States may lay down rules to allow qualified entities to require consumers who wish to be represented by them in a specific representative action for redress measures to pay a modest entry fee or similar charge in order to take part in that representative action.

Penalties

Member States must:

• set out rules on penalties for failure or refusal to comply with an injunctive measure, information obligation or disclosure of evidence obligation;
• ensure that those rules are implemented – penalties must be effective, proportionate and dissuasive.

Repeal

Directive (EU) 2020/1828 repeals Directive 2009/22/EC (see summary) from 25 June 2023.

FROM WHEN DOES THE DIRECTIVE APPLY?

It entered into force on 24 December 2020. It has to become law in the Member States by 25 December 2022 and to apply in the Member States as of 25 June 2023.

BACKGROUND

The directive is part of the ‘new deal for consumers’ package.

For further information, see:

• Injunctions directive (European Commission).

MAIN DOCUMENT

Directive (EU) 2020/1828 of the European Parliament and of the Council of 25 November 2020 on representative actions for the protection of the collective interests of consumers and repealing Directive 2009/22/EC (OJ L 409, 4.12.2020, pp. 1–27).

Successive amendments to Directive 2020/1828/EU have been incorporated into the original document. This consolidated version is of documentary value only.

last update 02.05.2023