Mr. Raymond O'Rourke:

I thank Mr. Jewell and thank the committee for inviting us here to discuss this rather long Bill, which transposes the directive. We have some points about specific items and we drill down quite specifically into various parts of the Bill. I hope Deputies and Senators will be happy with the detail, rather than just broad brush strokes, that I will put forward.

Head 16(1) transposes the conditions laid down in Article 4(3) of Directive (EU) 2020/1828 on the designation of an organisation as a qualified entity for the purposes of taking domestic or cross-border representative actions; in particular that the entity should be an association with the primary aim of protecting the interests of consumers. The specifics of the designation process will be dealt with under future ministerial regulations, as referenced in head 16(2).

We are concerned that additional conditions could be introduced, as seems to be asked by the Law Society even here today, militating against the Consumers Association of Ireland, the only existing consumer NGO in Ireland, from applying to be a qualified entity. Will those regulations be in place by the time this directive is to be operational on 25 June 2023?

The Department of Enterprise, Trade and Employment is the designated authority to inform the European Commission of designated qualified entities. What happens if it does not designate a body? If it does not, Irish consumers will be left without their statutory rights under this directive. What is the response of Oireachtas Members?

With regard to funding for qualified entities, head 7(3) states that, aside from an entry fee placed on an individual consumer to be a party to the representative action, "any costs incurred in the bringing of a representative action for redress shall be borne by the qualified entity and not the consumers represented by it". Head 20 clarifies that the head 7(3) fee should be a modest fee to be determined by the Minister, but how will this be determined? Will it be determined via the proposed ministerial regulations or another regulation?

Head 4 states that all representative actions for redress or an injunctive measure will be taken via the High Court under new superior court rules. Have these rules been adopted and will they be in place by 25 June 2023? We all know that commencing legal proceedings in the High Court is not cheap and, yet, the Bill ignores the administrative costs that will be demanded of a qualified entity, that is, a consumer association, to commence a representative action.

Head 3(4) notes that the Minister for Justice may make regulations to provide for the removal of fees payable to the court by parties bringing representative actions under the Act. This certainly would be of benefit to the qualified entity and, yet, as with other issues such as the superior court rules and ministerial regulations, we in the CAI are waiting to see if the Minister for Enterprise, Trade and Employment or the Minister for Justice is truly on the side of the Irish consumer.

The CAI suggests that even if such measures were introduced, the legislation places considerable administrative burdens on the qualified entity, such as the provision of information about representative actions online, transparency as to the funding of the qualified entity to avoid conflicts of interest and interactions with consumers prior to commencement of a representative action. In that case, the qualified entity would need to have a well-resourced office with staff to complete the task of instigating representative actions.

Without some form of funding from the Government or co-operative assistance from the Competition and Consumer Protection Commission, CCPC, as mentioned in its presentation, possibly by means of a memorandum of understanding, the CAI is doubtful if this directive will be fully enacted in Ireland for the benefit of Irish consumers.

I highlight Articles 20(1) and (2) of directive. Article 20 specifically states - this is not in the preamble - that:

Member States shall take measures 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 measures referred to in Article 7.

Article 7 refers to representative actions. The measures referred to in paragraph 1 may, for example, take the form of public funding, including structural support for qualified entities, limitation of applicable court or administrative fees, or access to legal aid.

This issue is not mentioned at all in the Bill before the committee and therefore means that the Government does not seem serious about fully transposing Directive (EU) 2020/1828, taking into account all the additional issues mentioned that still have to be enacted via ministerial regulations and changes to superior court rules. Are the Deputies and Senators happy, as Oireachtas Members, to potentially see Irish consumers unable to avail of their statutory consumer rights under the directive as of 25 June 2023 due to these anomalies?

I will mention the issue regarding a minimum number of consumers. Members will understand that preambles are really the philosophy behind the legislation. They do not have to be transposed. Preamble 12 of the directive notes that it is up to member states to lay down rules on various issues relating to representatives actions, such as "to decide on the required degree of similarity of individual claims or the minimum number of consumers concerned by a representative action for redress measures in order for the case to be admitted to be heard as a representative action.".

The CAI does not regard these important matters to be covered by the Bill. Will they also be an issue for ministerial regulations?

The last item I will mention is the length of prior consultation. Head 10(5) states that prior to a qualified entity bringing an action before the courts seeking an injunctive measure:

the qualified entity must first seek to enter into consultations with the trader concerned with the express purpose of having the trader cease the infringement referred to in section 6 of this Act.

This is a reasonably correct transposition of the directive, but the CAI would point out that one very important matter has been omitted in the wording of this section of the Bill. Paragraph (41) of the preamble to the directive states:

Where Member States have established that there should be prior consultation, a deadline of two weeks after the request for consultation is received should be set, after which, if the infringement has not ceased, the applicant should be entitled to immediately bring a representative action for an injunctive measure before the competent court or administrative authority. Such requirements could also apply to representative actions for redress measures, in accordance with national law.

This is a crucial issue that must be amended in the Bill; otherwise, the prior consultation could be a means to entirely undermine the consumer representative action by obstructive lengthy consultations, whether by solicitors, lawyers or traders, thereby making the injunctive measure of little use if finally agreed to by the court. Injunctive measures need to be introduced in a quick and timely fashion, as understood by Preamble (41).