Orla Clayton

Over the course of 2022, we reported on the key steps in Ireland’s implementation journey in relation to the EU Collective Redress Directive (EU) 2020/1828 — from the publication in March of the General Scheme of the Representative Actions for the Protection of the Collective Interest of Consumers Bill 2022 and the key points arising from two sessions of pre-legislative scrutiny (PLS) in June and in September, before the Joint Committee on Enterprise Trade and Employment.

The Directive was due to be adopted by 25 December 2022, with the measures to apply from 25 June 2023.

To recap, this Directive, once transposed into Irish law, will mark one of the most significant reforms in the area of consumer protection and redress since the State was founded. It will allow groups of consumers, who have suffered material loss or adverse consequence due to a breach of EU consumer protection law, to come together in a type of class action (a representative action) to seek redress. Actions will be brought by Qualified Entities (QE) which have not yet been nominated.

So at this point in time in 2023, where do matters presently stand?

Current Status — three key points

December — PLS is confirmed to be complete

The Committee confirmed that PLS was complete with the publication of its report on 6 December on the PLS of the General Scheme. This was a summary of the various submissions received during public consultation and then, of the evidence given to the Committee. The Committee made recommendations (nine in total) across a variety of issues. It remains to be seen how these will be reflected in the draft Bill. It will come as no surprise that the first recommendation was that proper provision is made for representative actions and litigation funding. The Department of Justice (who had not appeared at the PLS sessions) prepared a briefing note on third-party funding, which was inserted at pages 44 and 45 of the report — signalling that all this forms part of ongoing workstreams. In the Implementation Plan on the reform of Civil Justice, published by Minister Helen McEntee in May of 2022, it was made clear that the “weighing of policy considerations regarding third party funding” should be shaped by the outcome of a report currently in preparation by the Law Reform Commission. 2024 looks likely to be the indicative date for policy outcome. See more here. Whilst later in the year the government moved forward with legislative proposals to permit third party funding of international arbitration, the overall litigation funding piece is far from settled.

Mid-January — legislation programme is published

On 18 January, the government published its Spring 2023 Legislation Programme, which made clear that the publication of the Representative Actions for the Protection of the Collective Interests of Consumers Bill, as opposed to the General Scheme/Heads of the Bill which was subject to PLS last year, is still a priority for this session. This publication also confirmed that PLS was complete. That means that we can expect to see the changes, which may have been taken away for consideration following PLS, coming through in the next version of the text. It will also be this text which will now have to be debated in both houses of the Oireachtas and which will have to be passed before being signed into law by the President.

On this indication, we would expect to see the full draft Bill over the next few months.

27 January — European Commission indicates it will send a letter of formal notice to Ireland

Late last month, the European Commission announced that Ireland and 23 other Member States had failed to notify national measures transposing the Directive by the deadline of 25 December 2022 and as such, would be receiving letters of formal notice. Whilst noting that there was work ongoing in most Member States in terms of adoption, the Member States now have two months to reply to the letters and complete transposition.

What next?

It was intimated during the PLS that, in addition to the text of the legislation itself, Rules of Court around procedural issues and Ministerial Regulations surrounding the application process for QEs will also need to be up and running before any system is fully operational. These considerations, coupled with the particularities in the Irish civil justice regime around the litigation funding piece, point at the implementation of this Directive being far from imminent.

It is perhaps not surprising that so many Member States are grappling with implementation. What does look certain is that there are many more chapters in this implementation journey to come.

• Orla Clayton is a knowledge lawyer in the litigation and dispute resolution department of A&L Goodbody LLP.