Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1697804789069.pdf (Ireland)
An Comhchoiste um Fhiontar, Trádáil agus Fostaíocht Tuarascáil maidir leis an nGrinnscrúdú Réamhreachtach ar Scéim Ghinearálta na mBeart Ionadaitheach le haghaidh an Bhille um Chomhleasanna Tomhaltóirí a Chosaint, 2022 Nollaig 2022 Joint Committee on Enterprise, Trade and Employment Report on the Pre-Legislative Scrutiny of the General Scheme of the Representative Actions for the Protection of the Collective Interests of Consumers Bill, 2022 December 2022 33/ETE/11 Tuarascáil maidir leis an nGrinnscrúdú Réamhreachtach ar Scéim Ghinearálta na mBeart Ionadaitheach le haghaidh um Chomhleasanna Tomhaltóirí an Bhille a Chosaint, 2022 Table of Contents Recommendations .............................................................................................................................. 2 Réamhrá an Chathaoirligh/Chair’s Foreword ........................................................ 4 Introduction .............................................................................................................. 6 Overview ................................................................................................................... 8 General Scheme ....................................................................................................... 9 Engagement with Stakeholders ............................................................................ 11 Key Issues .............................................................................................................. 13 Key Issue 1 – Qualified Entities ........................................................................................................ 13 Key issue 2 – Impact on the product and consumer sector .............................................................. 19 Key issue 3 – Opt-in vs Opt-out models ........................................................................................... 21 Key issue 4 – Costs and fees............................................................................................................ 24
24 Key Issue 5 - Third party litigation funding ........................................................................................ 28 Key issue 6 – High Court .................................................................................................................. 33 Key issue 7 – Secondary Legislation ................................................................................................ 35 Key issue 8 – The Role of Regulatory/investigatory bodies ............................................................. 36 Key issue 9 – Informal Consultations ................................................................................................ 37 Key issue 10 - Domestic Representative Actions ............................................................................. 39 Key issue 11 – Miscellaneous matters .............................................................................................. 40 The Netherlands ..................................................................................................... 43 The Department of Justice Briefing note on Third-Party Funding ..................... 44 APPENDIX 1- Membership of the Joint Committee ............................................. 46 APPENDIX 2-Terms of Reference of The Joint Committee ................................. 47 APPENDIX 3 - Reference Links ............................................................................. 50 Page 1 of 50 REPORT ON THE PRE-LEGISLATIVE SCRUTINY OF THE GENERAL SCHEME OF THE REPRESENTATIVE ACTIONS FOR THE PROTECTION OF THE COLLECTIVE INTERESTS OF CONSUMERS BILL, 2022 Report on the Pre-Legislative Scrutiny of the General Scheme of the Representative Actions for the Protection of the Collective Interests of Consumers Bill, 2022 Recommendations 1.
The Committee recommends proper provision is made for representative actions and litigation funding.

These measures will aim to ensure that the cost of proceedings related to representative actions do not prevent qualified entities from effectively exercising their right to seek redress or injunctive measures.

The Committee is concerned that the vast cost burden may be an obstacle to many consumers seeking to achieve redress.
The Committee is further concerned that groups who genuinely require access to this redress will not be accounted for and may be excluded due to funding issues.

2.

The Committee recommends that the Minister for Enterprise, Trade and Employment engage with industry stakeholders to limit the administrative burden on the Qualified Entity.

3.

The Committee recommends that the scope of Qualified Entities be widened additionally to provide for consumer claims from sole traders, SME’s and other businesses.

4.
4.

The Committee recommends that engagement occurs with the Minister for Justice and the Department of Justice to scrutinise and reform the matter of third-party litigation funding provisions in order to review and reform the laws on champerty and maintenance.

5.

The Committee recommends a detailed application, criteria and designation process for Qualified Entities to be prescribed in legislation.

6.

The Committee supports the ‘opt in’ system as the preferred method for multi-party actions.
Page 2 of 50 Page 2 of 50 TUARASCÁIL MAIDIR LEIS AN NGRINNSCRÚDÚ RÉAMHREACHTACH AR SCÉIM GHINEARÁLTA NA MBEART IONA-DAITHEACH LE HAGHAIDH AN BHILLE UM CHOMHLEASANNA TOMHALTÓIRÍ A CHOSAINT, 2022 Report on the Pre-Legislative Scrutiny of the General Scheme of the Representative Actions for the Protection of the Collective Interests of Consumers Bill, 2022 Tuarascáil maidir leis an nGrinnscrúdú Réamhreachtach ar Scéim Ghinearálta na mBeart Ionadaitheach le haghaidh um Chomhleasanna Tomhaltóirí an Bhille a Chosaint, 2022 Recommendations 7.
The Committee recommends the provision of a national electronic database to track representative actions and provide monitoring and transparency.

1.

The Committee recommends proper provision is made for representative 8.

The Committee recommends that the entry fee should be small to not create additional obstacles to redress and consideration could be made for it to vary dependent on the number of consumers linked to the class action.

9.
9.

The General Scheme includes provisions for the Minister to make regulations to administer the designation and monitoring of Qualified Entities, and for the Minister for Justice to make regulations relating to the conduct of representative actions, where necessary.

The Committee noted the concerns of the stakeholders, and the proposed regulations may need further clarification to provide greater transparency for 2.

The Committee recommends that the Minister for Enterprise, Trade and consumers.
actions and litigation funding.

These measures will aim to ensure that the cost of proceedings related to representative actions do not prevent qualified entities from effectively exercising their right to seek redress or injunctive measures.

The Committee is concerned that the vast cost burden may be an obstacle to many consumers seeking to achieve redress.
The Committee is further concerned that groups who genuinely require access to this redress will not be accounted for and may be excluded due to funding issues.

Employment engage with industry stakeholders to limit the administrative burden on the Qualified Entity.

3.

The Committee recommends that the scope of Qualified Entities be widened additionally to provide for consumer claims from sole traders, SME’s and other businesses.

4.
4.

The Committee recommends that engagement occurs with the Minister for Justice and the Department of Justice to scrutinise and reform the matter of third-party litigation funding provisions in order to review and reform the laws on champerty and maintenance.

5.

The Committee recommends a detailed application, criteria and designation process for Qualified Entities to be prescribed in legislation.

6.

The Committee supports the ‘opt in’ system as the preferred method for multi-party actions.
Page 2 of 50 Page 3 of 50 Page 3 of 50 REPORT ON THE PRE-LEGISLATIVE SCRUTINY OF THE GENERAL SCHEME OF THE REPRESENTATIVE ACTIONS FOR THE PROTECTION OF THE COLLECTIVE INTERESTS OF CONSUMERS BILL, 2022 Report on the Pre-Legislative Scrutiny of the General Scheme of the Representative Actions for the Protection of the Collective Interests of Consumers Bill, 2022 Réamhrá an Chathaoirligh/Chair’s Foreword In March 2022, The Tánaiste and Minister for Enterprise, Trade and Employment, Mr. Leo Varadkar TD, referred the General Scheme of the Representative Actions for the Protection of the Collective Interests of Consumers Bill, 2022 in accordance with Standing Orders to the Joint Committee on Enterprise, Trade and Employment with a request to commence pre- legislative scrutiny at the Committee’s earliest convenience.
The Committee agreed to undertake pre-legislative scrutiny and has sought to examine the proposed legislation with the aim of making recommendations to assist in the improvement of this important piece of legislation.

The Committee welcomes the introduction of this General Scheme.
The proposed legislation transposes 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 (‘Directive on Representative Actions’).

The purpose of the Bill is to transpose the Directive and provide a legal framework for a new tool.
The tool will be implemented and introduces the ability for consumers, in mass harm situations, to litigate and be represented in large groups by another qualified entity.

This will enable consumers to enforce their rights.

The Committee has identified several issues and is making a number of recommendations which are explained in detail in the body of the Report.
The Committee believes these recommendations can improve the proposed legislation and I look forward to working with the Department of Enterprise, Trade and Employment on these.

The areas identified by the witnesses for further examination include the issue of litigation funding and the complex task of resolving this issue in order to give full effect to the transposition of the Directive.

I am keen to ensure no cost burden exists for those seeking to achieve redress.
Page 4 of 50 Page 4 of 50 TUARASCÁIL MAIDIR LEIS AN NGRINNSCRÚDÚ RÉAMHREACHTACH AR SCÉIM GHINEARÁLTA NA MBEART IONA-DAITHEACH LE HAGHAIDH AN BHILLE UM CHOMHLEASANNA TOMHALTÓIRÍ A CHOSAINT, 2022 Report on the Pre-Legislative Scrutiny of the General Scheme of the Representative Actions for the Protection of the Collective Interests of Consumers Bill, 2022 Tuarascáil maidir leis an nGrinnscrúdú Réamhreachtach ar Scéim Ghinearálta na mBeart Ionadaitheach le haghaidh um Chomhleasanna Tomhaltóirí an Bhille a Chosaint, 2022 Réamhrá an Chathaoirligh/Chair’s Foreword In March 2022, The Tánaiste and Minister for Enterprise, Trade and Employment, Mr. Leo Varadkar TD, referred the General Scheme of the Representative Actions for the Protection of the Collective Interests of Consumers Bill, 2022 in accordance with Standing Orders to the Joint Committee on Enterprise, Trade and Employment with a request to commence pre- legislative scrutiny at the Committee’s earliest convenience.
The Committee supports the ‘opt-in’ system and further recommends continued engagement with industry stakeholders around the limitation of the administrative burden on Qualified Entities, and the creation of a national electronic database.

The Committee would like to thank the Department of Enterprise, Trade and Employment for the in-person briefing and the Department of Justice for the written submission to the Committee.

The Committee greatly appreciated the opportunity to discuss this important topic.
All the submissions greatly assisted the Committee in its deliberations and analysis of The Committee agreed to undertake pre-legislative scrutiny the Bill.

I wish to thank all stakeholders and the Departments for their contributions and has sought to examine the proposed legislation with the aim of making and submissions to assist the Joint Committee in their analysis of the Bill.

I must recommendations to assist in the improvement of this important piece of legislation.
thank Members of the Committee for their collaborative work in agreeing this report.

I The Committee welcomes the introduction of this General Scheme.

The proposed legislation transposes Directive (EU) 2020/1828 of the European Parliament and of would also like to thank the Secretariat for its work on this report and all those who assisted the Joint Committee with its consideration of the Bill.
the Council of 25 November 2020 on representative actions for the protection of the I hope this report will help inform the legislative process and I look forward to collective interests of consumers and repealing Directive 2009/22/EC (‘Directive on furthering engagement on the matter as it progresses through the Houses.

Representative Actions’).

The purpose of the Bill is to transpose the Directive and provide a legal framework for a new tool.
The tool will be implemented and introduces the ability for consumers, in mass harm situations, to litigate and be represented in large groups by another qualified entity.

This will enable consumers to enforce their rights.

The Committee has identified several issues and is making a number of recommendations which are explained in detail in the body of the Report.
The Committee believes these recommendations can improve the proposed legislation and I look forward to working with the Department of Enterprise, Trade and Employment on these.

The areas identified by the witnesses for further examination include the issue of litigation funding and the complex task of resolving this issue in order to give full effect to the transposition of the Directive.

I am keen to ensure no cost burden exists for those seeking to achieve redress.
Deputy Maurice Quinlivan T.D Cathaoirleach Committee on Enterprise, Trade and Employment 1 December 2022 Page 4 of 50 Page 5 of 50 Page 5 of 50 REPORT ON THE PRE-LEGISLATIVE SCRUTINY OF THE GENERAL SCHEME OF THE REPRESENTATIVE ACTIONS FOR THE PROTECTION OF THE COLLECTIVE INTERESTS OF CONSUMERS BILL, 2022 Report on the Pre-Legislative Scrutiny of the General Scheme of the Representative Actions for the Protection of the Collective Interests of Consumers Bill, 2022 Introduction The General Scheme of the Representative Actions for the Protection of the Collective Interests of Consumers Bill received Government approval on 22 March 2022.
The Tánaiste and Minister for Enterprise, Trade and Employment, Mr. Leo Varadkar TD, referred the General Scheme to the Joint Committee on Enterprise, Trade and Employment on 24 March 2022 with a request to commence pre- legislative scrutiny at the Committee’s earliest convenience.

The Department of Enterprise, Trade and Employment held a public consultation from March 2021 to May 2021 and received 17 submissions from a broad range of stakeholders from law firms to consumer rights organisations.
The Committee commenced pre-legislative scrutiny on the Bill in June 2022.

The Committee had two meetings on the General Scheme on 29 June and 14 September.
The Committee also received four submissions from stakeholders: Submissions • • Irish Council for Civil Liberties Irish Business and Employers Confederation • Convenience Stores and Newsagents Association • European Justice Forum Page 6 of 50 Page 6 of 50 TUARASCÁIL MAIDIR LEIS AN NGRINNSCRÚDÚ RÉAMHREACHTACH AR SCÉIM GHINEARÁLTA NA MBEART IONA-DAITHEACH LE HAGHAIDH AN BHILLE UM CHOMHLEASANNA TOMHALTÓIRÍ A CHOSAINT, 2022 The General Scheme of the Representative Actions for the Protection of the Collective Interests of Consumers Bill received Government approval on 22 March Varadkar TD, referred the General Scheme to the Joint Committee on Enterprise, Trade and Employment on 24 March 2022 with a request to commence pre- legislative scrutiny at the Committee’s earliest convenience.
The Department of Enterprise, Trade and Employment held a public consultation from March 2021 to May 2021 and received 17 submissions from a broad range of stakeholders from law firms to consumer rights organisations.

The Committee commenced pre-legislative scrutiny on the Bill in June 2022.

The Committee had two meetings on the General Scheme on 29 June and 14 The Committee also received four submissions from stakeholders: September.
Submissions Irish Council for Civil Liberties • • Irish Business and Employers Confederation • Convenience Stores and Newsagents Association • European Justice Forum Report on the Pre-Legislative Scrutiny of the General Scheme of the Representative Actions for the Protection of the Collective Interests of Consumers Bill, 2022 Tuarascáil maidir leis an nGrinnscrúdú Réamhreachtach ar Scéim Ghinearálta na mBeart Ionadaitheach le haghaidh um Chomhleasanna Tomhaltóirí an Bhille a Chosaint, 2022 Introduction Witnesses 2022.
The Tánaiste and Minister for Enterprise, Trade and Employment, Mr. Leo 2299 JJuunnee • Ms Clare McNamara, Principal Officer • Mr Paul Brennan, Assistant Principal • Ms Sadhbh McGrath, Administrative Officer MMeeeettiinngg 11 OOffffiicciiaallss ffrroomm tthhee DDeeppaarrttmmeenntt ooff EEnntteerrpprriissee,, TTrraaddee aanndd EEmmppllooyymmeenntt MMeeeettiinngg 22 1144 SSeepptteemmbbeerr CCoommppeettiittiioonn aanndd CCoonnssuummeerr PPrrootteeccttiioonn CCoommmmiissssiioonn • Mr Jeremy Godfrey, Chairperson • Ms Síona Ryan, Director of Policy & International CCoonnssuummeerrss AAssssoocciiaattiioonn ooff IIrreellaanndd • Mr Michael Kilcoyne, Chairman • Mr Raymond Burke, Vice-Chairman • Mr Dermot Jewell, Policy and Council Advisor LLaaww SSoocciieettyy ooff IIrreellaanndd • Mr Phillip Andrews, Partner, Head of EU, Antitrust & Telecom, McCann FitzGerald LLP PPrroocceedduurraall bbaassiiss ffoorr ssccrruuttiinnyy Pre-Legislative consideration was conducted in accordance with Standing Order 173, which provides that the General Scheme of all Bills shall be given to the Committee empowered to consider Bills published by the member of Government.
The primary focus of these meetings was to allow for an engagement between the Members and stakeholders to discuss possible areas of the General Scheme which may need to be amended.

This report summarises the engagements and the key points considered by the Committee when drafting the recommendations set out in this report.
Page 6 of 50 Page 7 of 50 Page 7 of 50 REPORT ON THE PRE-LEGISLATIVE SCRUTINY OF THE GENERAL SCHEME OF THE REPRESENTATIVE ACTIONS FOR THE PROTECTION OF THE COLLECTIVE INTERESTS OF CONSUMERS BILL, 2022 Report on the Pre-Legislative Scrutiny of the General Scheme of the Representative Actions for the Protection of the Collective Interests of Consumers Bill, 2022 Overview This General Scheme transposes 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 (‘Directive on Representative Actions’).
Member States have until 25 December 2022 to transpose the Directive.

The 2015 “Dieselgate” scandal affected thousands of consumers across the EU.

This scandal, among others, highlighted gaps in consumer rights law across the EU’s internal market.

At this time there was no tool across the EU that would have allowed consumers, in mass harm situations, to litigate and be represented in large groups by another entity.
The transposition of the Directive on Representative Actions means for the first time in Irish law, a group of consumers can take an action through a Qualified Entity (QE).

The Directive on Representative Actions creates this process – representative action by Qualified Entities (QEs) - for groups of consumers to enforce their rights.

This new EU system is non-profit, and consumers do not cover the costs.

It does not create any new consumer rights.


The Directive on Representative Actions applies to a specific list of EU Laws (66 EU Laws) set out in Annex 1 of the Directive.

Actions can be brought on a domestic or cross-border basis.

An example of litigation before this Directive is the French leaseback situation, where consumers from all over Europe – including Irish consumers – bought properties in France with the guarantee of a leaseback and then found it did not work out as envisaged.
The relevant French consumer agency is investigating complaints on people's behalf.

If this legislation had been in place at the time, there may have been a case for a representative action to be taken in France, with consumers from all over the EU joining in on that.
Page 8 of 50 Page 8 of 50 TUARASCÁIL MAIDIR LEIS AN NGRINNSCRÚDÚ RÉAMHREACHTACH AR SCÉIM GHINEARÁLTA NA MBEART IONA-DAITHEACH LE HAGHAIDH AN BHILLE UM CHOMHLEASANNA TOMHALTÓIRÍ A CHOSAINT, 2022 Report on the Pre-Legislative Scrutiny of the General Scheme of the Representative Actions for the Protection of the Collective Interests of Consumers Bill, 2022 Tuarascáil maidir leis an nGrinnscrúdú Réamhreachtach ar Scéim Ghinearálta na mBeart Ionadaitheach le haghaidh um Chomhleasanna Tomhaltóirí an Bhille a Chosaint, 2022 Overview General Scheme This General Scheme transposes Directive (EU) 2020/1828 of the European The General Scheme contains three Parts and one Schedule.
In the main, the Parliament and of the Council of 25 November 2020 on representative actions for the Directive on Representative Actions is a maximum harmonisation Directive giving protection of the collective interests of consumers and repealing Directive Member States little discretion as to implementation.

Member States have discretion 2009/22/EC (‘Directive on Representative Actions’).
Member States have until 25 on measures such as how the QEs are funded and whether consumers should opt-in December 2022 to transpose the Directive.

or opt-out of representative actions.

The 2015 “Dieselgate” scandal affected thousands of consumers across the EU.

PPaarrtt 11 ((HHeeaadd 11--44)) -- PPrreelliimmiinnaarryy MMaatttteerrss This scandal, among others, highlighted gaps in consumer rights law across the Heads 1 and 2 deal with standard provisions such as the short title and definitions.
Head 3 permits the Minister to make Regulations for the process of designating QEs and permits the Minister for Justice to make Regulations for the process of bringing a representative action to the High Court.

Head 4 permits the Superior Courts Rules Committee to make rules of court in relation to the conduct of representative actions pursuant to Part 2 of the Act.
PPaarrtt 22 ((HHeeaadd 55--1155)) –– RReepprreesseennttaattiivvee AAccttiioonnss Head 5 confirms that only a QE which represents consumers may bring a representative action and can seek either an injunction or redress measure(s) against a trader, or both in the same action.
It confirms that several QEs, if they are designated in their own Member States as being able to bring cross-border representative actions, may do so together in Ireland, where it is appropriate for a An example of litigation before this Directive is the French leaseback situation, where representative action to be brought in Ireland Head 6 fixes the scope of the Act.
The Head confirms that a QE can only bring a representative action against a trader for breach of one of the European Union laws listed in the Annex to the Directive EU’s internal market.

At this time there was no tool across the EU that would have allowed consumers, in mass harm situations, to litigate and be represented in large groups by another entity.
The transposition of the Directive on Representative Actions means for the first time in Irish law, a group of consumers can take an action through a Qualified Entity (QE).

The Directive on Representative Actions creates this process – representative action by Qualified Entities (QEs) - for groups of consumers to enforce their rights.

This new EU system is non-profit, and consumers do not cover the costs.

It does not create any new consumer rights.


The Directive on Representative Actions applies to a specific list of EU Laws (66 EU Laws) set out in Annex 1 of the Directive.

Actions can be brought on a domestic or cross-border basis.

consumers from all over Europe – including Irish consumers – bought properties in France with the guarantee of a leaseback and then found it did not work out as envisaged.

The relevant French consumer agency is investigating complaints on people's behalf.
If this legislation had been in place at the time, there may have been a case for a representative action to be taken in France, with consumers from all over the EU joining in on that.
Page 8 of 50 Page 9 of 50 Page 9 of 50 REPORT ON THE PRE-LEGISLATIVE SCRUTINY OF THE GENERAL SCHEME OF THE REPRESENTATIVE ACTIONS FOR THE PROTECTION OF THE COLLECTIVE INTERESTS OF CONSUMERS BILL, 2022 Report on the Pre-Legislative Scrutiny of the General Scheme of the Representative Actions for the Protection of the Collective Interests of Consumers Bill, 2022 PPaarrtt 33 ((HHeeaadd 1166--2211)) –– QQuuaalliiffiieedd EEnnttiittiieess This Part provides the mechanism whereby organisations which have a track record in representing the collective interests of consumers, and which meet other criteria, can be designated by the Minister as QEs.
An appeals mechanism is set out and the Minister can revoke designation where it is determined that the organisation no longer meets the designating criteria.

QEs can charge consumers an entry fee.

A QE is also required to notify consumers about representative actions it has brought or intends to bring, and how consumers can notify the QE of their wish to be represented in a representative action.
SScchheedduullee Schedule 1 lists the European Union measures and Irish measures under which a representative action may be brought against a trader for alleged infringements.
Page 10 of 50 Page 10 of 50 TUARASCÁIL MAIDIR LEIS AN NGRINNSCRÚDÚ RÉAMHREACHTACH AR SCÉIM GHINEARÁLTA NA MBEART IONA-DAITHEACH LE HAGHAIDH AN BHILLE UM CHOMHLEASANNA TOMHALTÓIRÍ A CHOSAINT, 2022 Report on the Pre-Legislative Scrutiny of the General Scheme of the Representative Actions for the Protection of the Collective Interests of Consumers Bill, 2022 Tuarascáil maidir leis an nGrinnscrúdú Réamhreachtach ar Scéim Ghinearálta na mBeart Ionadaitheach le haghaidh um Chomhleasanna Tomhaltóirí an Bhille a Chosaint, 2022 PPaarrtt 33 ((HHeeaadd 1166--2211)) –– QQuuaalliiffiieedd EEnnttiittiieess This Part provides the mechanism whereby organisations which have a track record in representing the collective interests of consumers, and which meet other criteria, can be designated by the Minister as QEs.
An appeals mechanism is set out and the Minister can revoke designation where it is determined that the organisation no longer meets the designating criteria.

QEs can charge consumers an entry fee.

A QE is also required to notify consumers about representative actions it has brought or intends to bring, and how consumers can notify the QE of their wish to be represented in a representative action.
SScchheedduullee Engagement with Stakeholders During the public hearing, several important points were raised.

A summary of the key issues discussed and identified in evidence to the Committee is laid out here.
While the Law Society of Ireland welcomes the Directive and is in favour of the General Scheme, the Law Society would support broader and carefully balanced reforms that implement the recommendations of the A Law Reform Commission Report on Multi-Party Litigation Report (LRC 76-2005) and of the Administrative Civil Justice Group (the ‘’Kelly Report)’’.

It would be important that such reforms are carefully balanced to facilitate small-harm class action lawsuits while preventing excessive litigation.
They believe that the legislation could go further.

Their view Schedule 1 lists the European Union measures and Irish measures under which a reiterates what was previously set out in the LRC report and endorsed by the Kelly representative action may be brought against a trader for alleged infringements.

report, which is to give consumers direct access to collective, multiparty actions for themselves.
The Competition and Consumer Protection Commission (CCPC) welcomes the General Scheme and the introduction of representative actions in Ireland.

The CCPC believes that representative actions for the protection of collective interests of consumers will complement the soon to be expanded role of the CCPC in securing redress for consumers, allow for more efficient cross-European redress in cases of mass harm and provide a further incentive for traders to comply with consumer protection law.
The Consumers’ Association of Ireland (CAI) has serious concerns with many aspects of the proposed Bill.

The CAI ask for substantial changes to be made to the Bill in order that Irish consumers, in 2023, can rely on their statutory consumer rights as they are described in the Directive.
The Irish Council of Civil Liberties (ICCL) submitted to the Committee that unless the draft Bill provides appropriate external funding arrangements it will fail to ensure proper access to justice, and Ireland’s transposition of the Directive will breach EU Law.
Page 10 of 50 Page 11 of 50 Page 11 of 50 REPORT ON THE PRE-LEGISLATIVE SCRUTINY OF THE GENERAL SCHEME OF THE REPRESENTATIVE ACTIONS FOR THE PROTECTION OF THE COLLECTIVE INTERESTS OF CONSUMERS BILL, 2022 Report on the Pre-Legislative Scrutiny of the General Scheme of the Representative Actions for the Protection of the Collective Interests of Consumers Bill, 2022 The Irish Business and Employers Confederation (Ibec) state the draft Bill must ensure procedures are fair, transparent, and proportionate.
They must be workable, be put on a sound legal footing, and consistent with wider civil justice reforms.

The Convenience Stores and Newsagents Association (CSNA) contend that it is both unfair and discriminatory to continue to exclude small and medium sized businesses from the protection that European Consumer legislation affords to a narrow definition of "consumer".

The European Justice Forum (EJF) has a long tradition of advocating that a holistic view should be taken of consumer dispute resolution.
They recommend when implementing the Directive in the laws of the Member State, there are key considerations to review.

The EJF support the view that consumers need fast and inexpensive redress, a cumbersome collective action should only be the last resort.

RReeccoommmmeennddaattiioonn The Committee recommends that the Minister for Enterprise, Trade and Employment engage with industry stakeholders to limit the administrative burden on the Qualified Entity.
Page 12 of 50 Page 12 of 50 TUARASCÁIL MAIDIR LEIS AN NGRINNSCRÚDÚ RÉAMHREACHTACH AR SCÉIM GHINEARÁLTA NA MBEART IONA-DAITHEACH LE HAGHAIDH AN BHILLE UM CHOMHLEASANNA TOMHALTÓIRÍ A CHOSAINT, 2022 Report on the Pre-Legislative Scrutiny of the General Scheme of the Representative Actions for the Protection of the Collective Interests of Consumers Bill, 2022 Tuarascáil maidir leis an nGrinnscrúdú Réamhreachtach ar Scéim Ghinearálta na mBeart Ionadaitheach le haghaidh um Chomhleasanna Tomhaltóirí an Bhille a Chosaint, 2022 The Irish Business and Employers Confederation (Ibec) state the draft Bill must ensure procedures are fair, transparent, and proportionate.
They must be workable, Key Issues be put on a sound legal footing, and consistent with wider civil justice reforms.

Key Issue 1 – Qualified Entities The Convenience Stores and Newsagents Association (CSNA) contend that it is both unfair and discriminatory to continue to exclude small and medium sized businesses from the protection that European Consumer legislation affords to a narrow definition of "consumer".
The European Justice Forum (EJF) has a long tradition of advocating that a holistic view should be taken of consumer dispute resolution.

They recommend when implementing the Directive in the laws of the Member State, there are key considerations to review.

The EJF support the view that consumers need fast and inexpensive redress, a cumbersome collective action should only be the last resort.

RReeccoommmmeennddaattiioonn on the Qualified Entity.
The Committee recommends that the Minister for Enterprise, Trade and Employment engage with industry stakeholders to limit the administrative burden In line with the Directive, which provides that consumer groups bringing a representative action are to be represented by qualified entities (QEs) designated by EU Member States, the General Scheme provides that domestic and cross-border representative actions may only be brought by QEs designated by the Minister for Enterprise Trade and Employment (the Minister).
Under the General Scheme, it will operate as an opt-in system for consumers seeking redress measures (as opposed to seeking stand-alone injunctive relief, where the QE can bring an action without consumers opting in), requiring consumers expressly to confirm their interest in being represented by the designated QE.
A domestic representative action is one in which a QE, the named claimant, brings a representative action in the courts of the Member State where it is designated against a trader, the defendant.

A trader is defined as any natural person, or any legal person doing a trade, business, craft, or profession.

By contrast, a cross-border representative action is a representative action brought by a QE in a Member State other than that in which the QE is designated.
• The Directive requires each Member State to designate at least one ‘QE’ to bring actions on behalf of consumers.

A list of QEs will be maintained by the European Commission.

• QEs, such as consumer organisations, will be empowered to bring collective action cases on behalf of consumers for breaches of a wide range of EU Directives and Regulations.
• Member States will have a high level of discretion in selecting the criteria that QEs must meet for the purpose of bringing domestic representative actions.

To bring a cross-border representative action, the QE will have to meet certain criteria: • Be a non-profit organisation in consumer protection.
Page 12 of 50 Page 13 of 50 Page 13 of 50 REPORT ON THE PRE-LEGISLATIVE SCRUTINY OF THE GENERAL SCHEME OF THE REPRESENTATIVE ACTIONS FOR THE PROTECTION OF THE COLLECTIVE INTERESTS OF CONSUMERS BILL, 2022 Report on the Pre-Legislative Scrutiny of the General Scheme of the Representative Actions for the Protection of the Collective Interests of Consumers Bill, 2022 • Be independent.

• Have a legitimate interest in ensuring that there is compliance with the provisions of the Directive.
The CCPC is likely to be a QE in Ireland.

IInnjjuunnccttiioonnss aanndd rreeddrreessss aaccttiioonnss The General Scheme sets out how the procedure will work, but it will also involve some work on the part of the Department of Justice in terms of providing for rules of court.

That will have to be established by secondary legislation following on from the Bill.

The plaintiff in a representative action will be the QE, not the consumers.
That QE will have all the rights and obligations associated with this position, including such rights and obligations relating to discovery, inspection, and interrogatories.

Where several QEs bring a single representative action, one must be nominated to lead the conduct of the action.

The outcome of the action will bind all QEs.

The Committee questioned the criteria in assessing who will qualify as a designated QE.
The Department confirmed Article 4.7 of the Directive provides for the designation of public bodies as a QE.

The Department further stated no decision has been made at this stage on the designation of any QE.

There are considerable implications involved in the possible designation of public bodies, including their enforcement role and resourcing capacity and there is no time limit in the legislation on the number of QE that can be designated.
The Department advised on the uncertainty of the type of bodies that may apply and receive designation.

They must apply for designation and until the proposed legislation is enacted and open for applications it remains unclear who is going to apply to be QE.

The Committee questioned the risk that may arise if a body such as the Competition and Consumer Protection Commission (CCPC) became a designated QE and any litigation that may arise.
The Department advised that while the Government resources the CCPC and funds it the same as any other public body, if the Page 14 of 50 Page 14 of 50 TUARASCÁIL MAIDIR LEIS AN NGRINNSCRÚDÚ RÉAMHREACHTACH AR SCÉIM GHINEARÁLTA NA MBEART IONA-DAITHEACH LE HAGHAIDH AN BHILLE UM CHOMHLEASANNA TOMHALTÓIRÍ A CHOSAINT, 2022 Report on the Pre-Legislative Scrutiny of the General Scheme of the Representative Actions for the Protection of the Collective Interests of Consumers Bill, 2022 Tuarascáil maidir leis an nGrinnscrúdú Réamhreachtach ar Scéim Ghinearálta na mBeart Ionadaitheach le haghaidh um Chomhleasanna Tomhaltóirí an Bhille a Chosaint, 2022 • Be independent.
Government designated the CCPC as a QE it would still not take on the • Have a legitimate interest in ensuring that there is compliance with the responsibility of covering the costs.

Under the Directive, costs will always be the risk provisions of the Directive.

The CCPC is likely to be a QE in Ireland.


IInnjjuunnccttiioonnss aanndd rreeddrreessss aaccttiioonnss The General Scheme sets out how the procedure will work, but it will also involve some work on the part of the Department of Justice in terms of providing for rules of court.

That will have to be established by secondary legislation following on from the Bill.

The plaintiff in a representative action will be the QE, not the consumers.
That QE will have all the rights and obligations associated with this position, including such rights and obligations relating to discovery, inspection, and interrogatories.

Where several QEs bring a single representative action, one must be nominated to lead the conduct of the action.

The outcome of the action will bind all QEs.

The Committee questioned the criteria in assessing who will qualify as a designated QE.
The Department confirmed Article 4.7 of the Directive provides for the designation of public bodies as a QE.

The Department further stated no decision has been made at this stage on the designation of any QE.

There are considerable implications involved in the possible designation of public bodies, including their enforcement role and resourcing capacity and there is no time limit in the legislation on the number of QE that can be designated.
The Department advised on the uncertainty of the type of bodies that may apply and receive designation.

They must apply for designation and until the proposed legislation is enacted and open for applications it remains unclear who is going to apply to be QE.

The Committee questioned the risk that may arise if a body such as the Competition and Consumer Protection Commission (CCPC) became a designated QE and any litigation that may arise.
The Department advised that while the Government resources the CCPC and funds it the same as any other public body, if the of the QE itself, regardless of whether it is a not-for-profit organisation or a public body.

In taking the risk of bringing the case, the QE risks having costs awarded against them, regardless of their status.

In their Opening Statement the Law Society stated, the EU Directive sets minimum standards only.
It requires Member States to put in place at least one procedural mechanism to enable consumer organisations (called “QEs” to commence representative actions on behalf of consumers).

The Law Society noted, under the Directive and the General Scheme, only QEs, not individual consumers, can bring representative actions.

The Law Society observes many other Member States go beyond these standards in transposing the Directive.
The Law Society recommends the General Scheme could go further in scope in transposing the Directive and its key purpose.

The proposed legislation could be further strengthened by allowing representative actions to be taken by individual consumers.

The Law Society further notes a concern under Head 5 – Application, subsection (1), of the General Scheme.

Head 5(1) appears to suggest that “only” collective actions by QEs are permitted in Irish law.
The Law Society contends the inclusion of the word “only,” poses the issue of a limitation becoming incorporated into the Irish legislation that may have unintended consequences.

The Law Society informed the Committee, the inclusion of a legislative provision that limited private-party rights to take collective or multi-party actions in such a way could also run counter to recommendations of the Law Reform Commission and the calls for legislative reform by the judiciary.
The Law Society note the criteria laid down in Head 16(i)(a) to (f) stipulate that the body should, among other things, be a non-profit body.

The Directive provides for a two-category system of designating QEs.

The CCPC welcome the criteria for designation of QEs who can take representative actions on behalf of affected consumers.
The CCPC contend the criteria follow the Page 14 of 50 Page 15 of 50 Page 15 of 50 REPORT ON THE PRE-LEGISLATIVE SCRUTINY OF THE GENERAL SCHEME OF THE REPRESENTATIVE ACTIONS FOR THE PROTECTION OF THE COLLECTIVE INTERESTS OF CONSUMERS BILL, 2022 Report on the Pre-Legislative Scrutiny of the General Scheme of the Representative Actions for the Protection of the Collective Interests of Consumers Bill, 2022 Directive and will ensure that consumers’ interests are at the heart of all representative actions.
The CCPC consider that QEs should be free to make independent decisions about which cases to pursue, based on their own criteria, such as the prospects of success, the scale of consumer detriment and whether they have the resources and expertise needed.

This is implicit in the General Scheme and the CCPC state it will be important that the final legislation does not constrain the independence of QEs in this regard.
The CCPC support the provision for the Minister to facilitate cooperation and sharing of best practice amongst QEs.

They consider that it will also be useful for there to be cooperation amongst entities interested in becoming QEs prior to designation, and that public bodies such as the CCPC may also have a role in sharing experience with QEs or bodies seeking designation.

In addition, the CCPC do not feel it is needed to be explicitly stated in the proposed legislation.
The CCPC believe when deciding which types of body might become QEs that the interests of consumers are best served if they have the option of civil society bodies taking representative actions on their behalf, in addition to public bodies taking enforcement action against traders who breach consumer law.

The CCPC further believe having two options available will mean that consumers can take matters into their own hands if a public body decides not to pursue a particular case for any reason.
In their evidence the CCPC, express no concerns in relation to the criteria or process of designating a QE.

The main issue which arises is public funding and the issues which surround modernising laws relating to third party litigation funding.

The issues which arise are a matter for the Department of Justice and not the Department of Enterprise, Trade and Employment.

An important consideration for the CCPC is supporting and assisting bodies that are interested in becoming QE in their applications.
The Irish Council for Civil Liberties (ICCL) has pointed out that Article 20(1) of the Directive provides that "Member States shall take account of the non-profit making Page 16 of 50 Page 16 of 50 TUARASCÁIL MAIDIR LEIS AN NGRINNSCRÚDÚ RÉAMHREACHTACH AR SCÉIM GHINEARÁLTA NA MBEART IONA-DAITHEACH LE HAGHAIDH AN BHILLE UM CHOMHLEASANNA TOMHALTÓIRÍ A CHOSAINT, 2022 Report on the Pre-Legislative Scrutiny of the General Scheme of the Representative Actions for the Protection of the Collective Interests of Consumers Bill, 2022 Tuarascáil maidir leis an nGrinnscrúdú Réamhreachtach ar Scéim Ghinearálta na mBeart Ionadaitheach le haghaidh um Chomhleasanna Tomhaltóirí an Bhille a Chosaint, 2022 Directive and will ensure that consumers’ interests are at the heart of all character of QEs and ensure that a lack of funding is not a bar to bringing representative actions.
representative actions".

The CCPC consider that QEs should be free to make independent decisions about The ICCL are concerned the draft legislation provides no such funding mechanism.

which cases to pursue, based on their own criteria, such as the prospects of There is no provision for legal aid, nor a public fund.
The ICCL further believe the success, the scale of consumer detriment and whether they have the resources and “modest entry fee” to consumers is inadequate to fund complex cross border multi expertise needed.

This is implicit in the General Scheme and the CCPC state it will party litigation.

Along with other stakeholders they are concerned at the lack be important that the final legislation does not constrain the independence of QEs in provision for third party funding.

this regard.
this regard.

The Consumer Association of Ireland (CAI) refer to the preamble and then Article The CCPC support the provision for the Minister to facilitate cooperation and sharing 4(3).

This specifies that those bodies or NGOs that can demonstrate public activity in of best practice amongst QEs.

They consider that it will also be useful for there to be the protection of consumer interests, can apply for designation.
The CCPC and the cooperation amongst entities interested in becoming QEs prior to designation, and CAI support ad hoc designation for a specific group of consumers who are interested that public bodies such as the CCPC may also have a role in sharing experience in protecting the interests of consumers as provided for in the legislation the with QEs or bodies seeking designation.

In addition, the CCPC do not feel it is Directive seeks to support.

needed to be explicitly stated in the proposed legislation.
Ibec support single representative actions.

Head 5(6) of the General Scheme The CCPC believe when deciding which types of body might become QEs that the confirms that Ireland is to allow QEs to seek injunctive and final measures within a interests of consumers are best served if they have the option of civil society bodies single representative action.
This would be procedurally more efficient for all parties taking representative actions on their behalf, in addition to public bodies taking as it would keep all reliefs sought relating to the same subject matter in the same enforcement action against traders who breach consumer law.

The CCPC further proceedings.

Ibec contend this will assist in the conducting of efficient procedures.
In their evidence the CCPC, express no concerns in relation to the criteria or process support from other statutory bodies.

Ibec advocate that responsibility for designating a QE must lie with a body established by statute.

Head 5(1) and Head 16 of the General Scheme proposes that the Department of Enterprise, Trade and Employment takes on this role itself, with Ireland has opted to appoint a single body to designate QEs.
This must be accompanied by a structure to support coordination with all the other statutory bodies.

A working relationship must be developed across all consumer-facing sectors.

Once enacted, these bodies must be actively consulted in the operation and carrying out of functions under the legislation.

These bodies should have input into decisions on designating QEs within their individual sectors.
Additionally, the The Irish Council for Civil Liberties (ICCL) has pointed out that Article 20(1) of the Standards in Public Office Commission (SIPO) should be consulted on its expertise.

Directive provides that "Member States shall take account of the non-profit making SIPO set up and manages the Register of Third Parties and the Lobbying Register.
Page 16 of 50 Page 17 of 50 Page 17 of 50 believe having two options available will mean that consumers can take matters into their own hands if a public body decides not to pursue a particular case for any reason.

of designating a QE.

The main issue which arises is public funding and the issues which surround modernising laws relating to third party litigation funding.

The issues which arise are a matter for the Department of Justice and not the Department of Enterprise, Trade and Employment.
An important consideration for the CCPC is supporting and assisting bodies that are interested in becoming QE in their applications.
REPORT ON THE PRE-LEGISLATIVE SCRUTINY OF THE GENERAL SCHEME OF THE REPRESENTATIVE ACTIONS FOR THE PROTECTION OF THE COLLECTIVE INTERESTS OF CONSUMERS BILL, 2022 Report on the Pre-Legislative Scrutiny of the General Scheme of the Representative Actions for the Protection of the Collective Interests of Consumers Bill, 2022 QEs must be able to demonstrate sufficient and legitimate standing in representing consumers and in conducting litigation.
Head 3(2)(a) of the General Scheme states that the Minister for Enterprise, Trade and Employment will enact guidelines prescribing the requirements to designate QEs.

Further detail is provided for in Head 16(1) of the General Scheme.

Under this Head, a designated QE must be able to hold a considerable track-record in the specific area of consumer law they seek to engage in.

They must be adequately equipped to represent consumers and be not- for-profit.

They must also be independent from their backers.


In a follow up letter to the Committee, the Department reiterates that the draft legislation fully transposes the designation criteria set out in the Directive.

No additional designating criteria will be included in the General Scheme.

Any organisation which meets the criteria set out in the General Scheme will be entitled to apply for designation.
The EJF believe, in times of increasing mass damages and market integration, cross-border situations require particular attention to facilitate dispute resolution.

A new legislative initiative might create real EU value by tackling important issues related to transparency, structure, and procedures.

TThhee 1122--mmoonntthh aaccttiivviittyy rreeqquuiirreemmeenntt Ibec support the stated requirement that a QE demonstrate 12 months of activity as important.
They contend data and evidence must be readily and easily verifiable.

It should clearly demonstrate the protection of consumer interests prior to its request for designation.

Sufficient weighting should be given to information available from public, third party or independent sources over that provided solely by the applicant.

Ibec believe a one-year requirement is not too onerous.
QEs could seek designation during the period of new EU or national policies being formulated and could secure designation by the time they enter into force.

AAdd hhoocc ddeessiiggnnaattiioonn Ibec submit that there is no provision for the designation of ad-hoc QEs in the General Scheme.

Ibec supports this.

Ad-hoc QEs are not compatible with the spirit and desired transparency of the legislation and the Directive.
They contend this Page 18 of 50 Page 18 of 50 TUARASCÁIL MAIDIR LEIS AN NGRINNSCRÚDÚ RÉAMHREACHTACH AR SCÉIM GHINEARÁLTA NA MBEART IONA-DAITHEACH LE HAGHAIDH AN BHILLE UM CHOMHLEASANNA TOMHALTÓIRÍ A CHOSAINT, 2022 Report on the Pre-Legislative Scrutiny of the General Scheme of the Representative Actions for the Protection of the Collective Interests of Consumers Bill, 2022 Tuarascáil maidir leis an nGrinnscrúdú Réamhreachtach ar Scéim Ghinearálta na mBeart Ionadaitheach le haghaidh um Chomhleasanna Tomhaltóirí an Bhille a Chosaint, 2022 QEs must be able to demonstrate sufficient and legitimate standing in representing would open the door to abusive litigation and/or unfair forum shopping.
It would be consumers and in conducting litigation.

Head 3(2)(a) of the General Scheme states too difficult to properly assess their specific standing.

They could have no track- that the Minister for Enterprise, Trade and Employment will enact guidelines record of consumer representation.

It is possible that an entity previously turned- prescribing the requirements to designate QEs.
Further detail is provided for in Head down for QE designation under the formal process, could then seek and secure ad- 16(1) of the General Scheme.

Under this Head, a designated QE must be able to hoc designation later.

In their written submission, the EJF recommend, prohibition hold a considerable track-record in the specific area of consumer law they seek to (and exclude admission) of ad hoc entities as domestic plaintiffs.

engage in.
engage in.

They must be adequately equipped to represent consumers and be not- for-profit.

They must also be independent from their backers.

The Department confirmed the Directive permits the creation of ad-hoc QEs for domestic representative actions only.
The designation process in Ireland allows for In a follow up letter to the Committee, the Department reiterates that the draft the creation of QEs that could bring both domestic and cross-border representative legislation fully transposes the designation criteria set out in the Directive.

No actions and does not designate ad-hoc QEs.

additional designating criteria will be included in the General Scheme.
Any organisation which meets the criteria set out in the General Scheme will be entitled to apply for designation.

DDeessiiggnnaattiioonn ooff ssppeecciiffiicc ppuubblliicc bbooddiieess Head 2(1)(l) of the General Scheme states that a public body or bodies can be designated as a QE or entities for the purpose of bringing representative actions.
The EJF believe, in times of increasing mass damages and market integration, Specific engagement will need to occur between all statutory bodies to determine the cross-border situations require particular attention to facilitate dispute resolution.

A most appropriate body (or bodies) to take such actions.

new legislative initiative might create real EU value by tackling important issues related to transparency, structure, and procedures.
Ibec contend representative actions by public bodies could represent a dual track approach of sanctions.

This would be inappropriate and burdensome on both the TThhee 1122--mmoonntthh aaccttiivviittyy rreeqquuiirreemmeenntt public bodies and private industry.

Ibec support the stated requirement that a QE demonstrate 12 months of activity as important.

They contend data and evidence must be readily and easily verifiable.
It Key issue 2 – Impact on the product and consumer sector should clearly demonstrate the protection of consumer interests prior to its request The infringement by traders must be related to claims arising under any of the 66 for designation.

Sufficient weighting should be given to information available from European Directives and Regulations specified in Annex I to the Directive, along with public, third party or independent sources over that provided solely by the applicant.
their national implementing measures.

This limitation applies and the relevant laws Ibec believe a one-year requirement is not too onerous.

QEs could seek designation are listed in the schedule to the General Scheme.

Action can only be taken for during the period of new EU or national policies being formulated and could secure breaches of a very specific set of consumer protection laws, which are all listed.

It is designation by the time they enter into force.
AAdd hhoocc ddeessiiggnnaattiioonn not creating any new consumer rights, but it is covering all the consumer rights that exist within the legislation that is set out in the Schedule to the Bill.

Ibec submit that there is no provision for the designation of ad-hoc QEs in the To capture a few sectors, these Directives and Regulations include: General Scheme.

Ibec supports this.

Ad-hoc QEs are not compatible with the spirit and desired transparency of the legislation and the Directive.
They contend this • The General Product Safety Directive (GPSD) • The Digital Content Directive Page 18 of 50 Page 19 of 50 Page 19 of 50 REPORT ON THE PRE-LEGISLATIVE SCRUTINY OF THE GENERAL SCHEME OF THE REPRESENTATIVE ACTIONS FOR THE PROTECTION OF THE COLLECTIVE INTERESTS OF CONSUMERS BILL, 2022 Report on the Pre-Legislative Scrutiny of the General Scheme of the Representative Actions for the Protection of the Collective Interests of Consumers Bill, 2022 • The Sale of Goods Directive • The GDPR • The Directive on Liability for Defective Products • Medical Devices Regulations • EU Regulations on Medicinal Products for Human Use Current opportunities for consumers to bring proceedings against digital service providers are limited, expensive and time-consuming with limited potential benefit in terms of compensation by the end of the process.
Once Member States have applied the measures of the Directive on Representative Actions, this is likely to greatly increase the enforcement of consumer rights across the EU.

For example, if a wearable product has safety issues under the GPSD and many consumers complain to a QE, it will be able to bring a collective action against the manufacturer for alleged infringements of the GPSD.
In some instances, QEs will be able to bring a joint representative action along with consumer protection groups and NGOs from other Member States if there is an EU-wide issue.

The Law Society notes with concern, the General Scheme does not govern lawsuits concerning antitrust (i.e., competition) laws.
DDeeffiinniittiioonn ooff aa CCoonnssuummeerr In their written submission the CSNA noted it is both unfair and discriminatory to continue to exclude small and medium sized businesses from the protection that European consumer legislation affords to a narrow definition of "consumer".

The Association has engaged in correspondence with the Department on this and related matters in recent times.
We are aware that the Directive in Article 3(1) states a consumer to mean "any natural person who acts for purposes which are outside that person's trade, business, craft or profession".
The CSNA believe significant changes in people working from home rather than in offices might force a reconsideration of whether consumption of products in a (domestic) work environment excludes the protection granted to an individual who Page 20 of 50 Page 20 of 50 TUARASCÁIL MAIDIR LEIS AN NGRINNSCRÚDÚ RÉAMHREACHTACH AR SCÉIM GHINEARÁLTA NA MBEART IONA-DAITHEACH LE HAGHAIDH AN BHILLE UM CHOMHLEASANNA TOMHALTÓIRÍ A CHOSAINT, 2022 Report on the Pre-Legislative Scrutiny of the General Scheme of the Representative Actions for the Protection of the Collective Interests of Consumers Bill, 2022 Tuarascáil maidir leis an nGrinnscrúdú Réamhreachtach ar Scéim Ghinearálta na mBeart Ionadaitheach le haghaidh um Chomhleasanna Tomhaltóirí an Bhille a Chosaint, 2022 uses the product solely for their domestic pleasure.
The CSNA is concerned by the lack of protections given to sole traders, SME’s or businesses not covered by the Directive.

The CSNA would like the Committee to consider whether any individual that consumes a product or service in the course of their work or profession could be within the extremely narrow definition contained in the Directive.
The CSNA state, if business use of a product or service excludes the user (a consumer of that service) from consumer protection, but a private individual using precisely the same product or service is accorded protection, the narrow definition may need to be reviewed.
The CSNA would like the Committee to consider broadening the definition of a consumer and make it even more inclusive by allowing QEs admit consumer claims from sole traders, SME’s and businesses, in addition to individuals using domestic contracts for working from home purposes.

RReeccoommmmeennddaattiioonn The Committee recommends that the scope of Qualified Entities be widened additionally to provide for consumer claims from sole traders, SME’s and other businesses.
continue to exclude small and medium sized businesses from the protection that Key issue 3 – Opt-in vs Opt-out models European consumer legislation affords to a narrow definition of "consumer".

The Directive permits Member States to adopt or maintain existing domestic legal traditions or rules when choosing whether to use an opt-in or opt-out mechanism for representative actions.
a consumer to mean "any natural person who acts for purposes which are outside Head 11 of the General Scheme requires that consumers affected by an alleged infringement of their rights must opt-in to a representative action for redress.

However, there is no opt-in provision in terms of representative actions seeking injunctive relief.
Page 20 of 50 Page 21 of 50 Page 21 of 50 • The Sale of Goods Directive • The GDPR • The Directive on Liability for Defective Products • Medical Devices Regulations • EU Regulations on Medicinal Products for Human Use Current opportunities for consumers to bring proceedings against digital service providers are limited, expensive and time-consuming with limited potential benefit in terms of compensation by the end of the process.
Once Member States have applied the measures of the Directive on Representative Actions, this is likely to greatly increase the enforcement of consumer rights across the EU.

For example, if a wearable product has safety issues under the GPSD and many consumers complain to a QE, it will be able to bring a collective action against the manufacturer for alleged infringements of the GPSD.
In some instances, QEs will be able to bring a joint representative action along with consumer protection groups and NGOs from other Member States if there is an EU-wide issue.

The Law Society notes with concern, the General Scheme does not govern lawsuits concerning antitrust (i.e., competition) laws.
DDeeffiinniittiioonn ooff aa CCoonnssuummeerr In their written submission the CSNA noted it is both unfair and discriminatory to The Association has engaged in correspondence with the Department on this and related matters in recent times.

We are aware that the Directive in Article 3(1) states that person's trade, business, craft or profession".
The CSNA believe significant changes in people working from home rather than in offices might force a reconsideration of whether consumption of products in a (domestic) work environment excludes the protection granted to an individual who REPORT ON THE PRE-LEGISLATIVE SCRUTINY OF THE GENERAL SCHEME OF THE REPRESENTATIVE ACTIONS FOR THE PROTECTION OF THE COLLECTIVE INTERESTS OF CONSUMERS BILL, 2022 Report on the Pre-Legislative Scrutiny of the General Scheme of the Representative Actions for the Protection of the Collective Interests of Consumers Bill, 2022 The General Scheme requires that consumers affected by an alleged infringement of their consumer rights by a trader must opt-in to a representative action for redress against that trader.
Consumers must notify the QE of their wish to be represented before the defendant trader enters an appearance in the proceedings.

On a practical level, an opt-in mechanism will more easily allow the QE to communicate with consumers during litigation and provide instructions to them about how to obtain the benefit of any redress measures awarded by the court.
In the first public hearing, the Department noted their decision to choose the opt-in method because of the public consultation undertaken earlier in 2021 and due to some legal doubts around the opt-out option.

The responses in the public consultation were mostly in favour of an opt-in choice.

The CAI highlight two methods.

One method involves taking an initial case on an opt-out basis, which means that they take a case to a lower court, present it, and see what comes from it.
Another method involves taking a case on behalf of a pocketful of their members and seeing what the position is.

This rationale is to inform their legal advisers on how to proceed, what the timeframe and the costs are potentially going to be, and the depths to which they will have to invest to take a full class action, certainly if it is going to be a cross-border action.
Ibec support an opt-in system for both domestic and cross-border actions as the only viable option to achieve a balanced system between access to justice and procedural safeguards against abusive litigation.

Collective proceedings in Europe have traditionally operated under the “opt-in” model, where affected parties affirmatively elect to join a claim.

The European Commission had recognised that the awareness issues can be particularly problematic in cross-border actions.
Ibec believe there is an inconsistency between Head 10 (injunctive relief) & Head 11 (redress) regarding the opt-in system.

Ibec recommend resolving the issue in the final legislation by way of amending Head 10(12) of the General Scheme.

It states that there is no requirement for consumers to opt-in to a representative action seeking an injunctive measure.

Individual consumers do not have to notify the QE of their wish to be represented by that QE.
Page 22 of 50 Page 22 of 50 TUARASCÁIL MAIDIR LEIS AN NGRINNSCRÚDÚ RÉAMHREACHTACH AR SCÉIM GHINEARÁLTA NA MBEART IONA-DAITHEACH LE HAGHAIDH AN BHILLE UM CHOMHLEASANNA TOMHALTÓIRÍ A CHOSAINT, 2022 Report on the Pre-Legislative Scrutiny of the General Scheme of the Representative Actions for the Protection of the Collective Interests of Consumers Bill, 2022 Tuarascáil maidir leis an nGrinnscrúdú Réamhreachtach ar Scéim Ghinearálta na mBeart Ionadaitheach le haghaidh um Chomhleasanna Tomhaltóirí an Bhille a Chosaint, 2022 The General Scheme requires that consumers affected by an alleged infringement of Ibec question the justification for the differentiated approach as it is unclear, but it their consumer rights by a trader must opt-in to a representative action for redress could have significant consequences on redress actions.
By not requiring consumers against that trader.

Consumers must notify the QE of their wish to be represented to opt-in to a representative action seeking an injunctive measure, consumers could before the defendant trader enters an appearance in the proceedings.

instead wait to see the outcome of the action.


If it is successful, consumers would be On a practical level, an opt-in mechanism will more easily allow the QE to communicate with consumers during litigation and provide instructions to them about still free to opt-in to a collective redress action.

This could dramatically increase the number of entrants to the redress action.

how to obtain the benefit of any redress measures awarded by the court.
It should be noted that time limits set down in Head 11 governing the notification period for consumers to opt-in to a redress action would be briefly set-aside pending the completion of an injunctive action.

The General Scheme should be duly amended requiring an opt-in to representative actions for injunctive relief.

consultation were mostly in favour of an opt-in choice.
In a follow up letter to the Committee, the Department explained, the overwhelming outcome of the consultation programme held by the Department prior to drafting the Heads of the General Scheme was for Ireland to adopt an opt-in mechanism, whereby a consumer would inform the QE of their wish to be represented in a case brought against a trader.
Opt-in provides consumers with a choice and provides certainty to all parties about the number of consumers being represented by the QE and therefore the likely cost of any redress measure ordered by the court.

RReeccoommmmeennddaattiioonn In the first public hearing, the Department noted their decision to choose the opt-in method because of the public consultation undertaken earlier in 2021 and due to some legal doubts around the opt-out option.

The responses in the public The CAI highlight two methods.
One method involves taking an initial case on an opt-out basis, which means that they take a case to a lower court, present it, and see what comes from it.

Another method involves taking a case on behalf of a pocketful of their members and seeing what the position is.
This rationale is to inform their legal advisers on how to proceed, what the timeframe and the costs are potentially going to be, and the depths to which they will have to invest to take a full class action, certainly if it is going to be a cross-border action.
Ibec support an opt-in system for both domestic and cross-border actions as the only The Committee supports the ‘opt in’ system as the preferred method for multi-party viable option to achieve a balanced system between access to justice and procedural safeguards against abusive litigation.

Collective proceedings in Europe have traditionally operated under the “opt-in” model, where affected parties actions.

affirmatively elect to join a claim.


The European Commission had recognised that the TTrraannssppaarreennccyy awareness issues can be particularly problematic in cross-border actions.

The draft legislation requires QEs to regularly publish information about cases they Ibec believe there is an inconsistency between Head 10 (injunctive relief) & Head 11 (redress) regarding the opt-in system.

Ibec recommend resolving the issue in the final legislation by way of amending Head 10(12) of the General Scheme.
It states have brought, or intend to bring, in Ireland and in other Member States, and the outcomes of those cases, so that consumers can make an informed decision about whether to join any representative action.

that there is no requirement for consumers to opt-in to a representative action A list of QEs which have been designated in Ireland will be published on websites by seeking an injunctive measure.
Individual consumers do not have to notify the QE of the Department of Enterprise, Trade and Employment and by the European their wish to be represented by that QE.

Commission.
Page 22 of 50 Page 23 of 50 Page 23 of 50 REPORT ON THE PRE-LEGISLATIVE SCRUTINY OF THE GENERAL SCHEME OF THE REPRESENTATIVE ACTIONS FOR THE PROTECTION OF THE COLLECTIVE INTERESTS OF CONSUMERS BILL, 2022 Report on the Pre-Legislative Scrutiny of the General Scheme of the Representative Actions for the Protection of the Collective Interests of Consumers Bill, 2022 The General Scheme permits the Minister to prepare regulations to facilitate the administration of the designation process, which will be undertaken by the Department of Enterprise, Trade and Employment.
This includes a comprehensive independent review mechanism in circumstances where designation is refused.

TThhee UUKK eexxaammppllee The Law society presented the example of the UK.

The UK has a possibility for opt- out in the context of its competition appeal tribunal.

The benefit of that opt-out system, is that many of these cases may be settled, and a settlement is generally better in that it avoids the litigation costs.
If an opt-out class action case is settled, then the entire action has been settled.

This would provide efficiency for cases and a resolution for consumers.

Funding in the UK is significantly supported by third parties.

Key issue 4 – Costs and fees The Directive provides for third-party funding of representative actions, where allowed under national law.

Under Head 7 concerning parties in a representative action, it states that all costs will be borne by the QE.
The Department further explained, in Ireland, as a common law jurisdiction we are limited by champerty and maintenance rules.

Third party funding is very limited or unusual in Ireland.

Therefore, the Government provides for overcoming this in terms of support, is to waive the court fees for the QE.

The General Scheme provides that where the Court is assessing the admissibility of a representative action, it shall have regard to the funding sources of a representative action.
The QE, as a claimant party, would cover the overall costs.

For example, if the costs are awarded against them, the usual principle applies in terms of court costs.

The Committee raised concerns in how an entity would fund any prospective court action and actions further legislation can take to resolve this issue.

The Committee further raised the risk of designating a public body as a QE should the State then have to financially support the action.
Page 24 of 50 Page 24 of 50 TUARASCÁIL MAIDIR LEIS AN NGRINNSCRÚDÚ RÉAMHREACHTACH AR SCÉIM GHINEARÁLTA NA MBEART IONA-DAITHEACH LE HAGHAIDH AN BHILLE UM CHOMHLEASANNA TOMHALTÓIRÍ A CHOSAINT, 2022 Report on the Pre-Legislative Scrutiny of the General Scheme of the Representative Actions for the Protection of the Collective Interests of Consumers Bill, 2022 Tuarascáil maidir leis an nGrinnscrúdú Réamhreachtach ar Scéim Ghinearálta na mBeart Ionadaitheach le haghaidh um Chomhleasanna Tomhaltóirí an Bhille a Chosaint, 2022 The General Scheme permits the Minister to prepare regulations to facilitate the The CAI state there are several Member States where consumer associations take administration of the designation process, which will be undertaken by the cases.
The costs of administration, preparation, and engagement with legal people in Department of Enterprise, Trade and Employment.

This includes a comprehensive advance are significant because it takes a lot of time.

Beyond that, the cost of independent review mechanism in circumstances where designation is refused.

advising every consumer in an opt-in situation that a case is about to be taken and TThhee UUKK eexxaammppllee The Law society presented the example of the UK.
The UK has a possibility for opt- out in the context of its competition appeal tribunal.

The benefit of that opt-out ensuring they all know and understand what the case is, can register, get in touch in person with an entity, as required, and not just a website, and be updated on progress is quite significant.
system, is that many of these cases may be settled, and a settlement is generally The CAI support the view that cases under collective redress should be the better in that it avoids the litigation costs.

If an opt-out class action case is settled, exception.

As it would be a very significant issue to challenge, it comes at a cost.

then the entire action has been settled.


This would provide efficiency for cases and a The entity one is taking the case against will support the interest of each consumer resolution for consumers.

Funding in the UK is significantly supported by third but in doing so incurs a cost burden from the outset.

parties.

Key issue 4 – Costs and fees The Directive provides for third-party funding of representative actions, where allowed under national law.
Under Head 7 concerning parties in a representative action, it states that all costs will be borne by the QE.

The Department further explained, in Ireland, as a common law jurisdiction we are limited by champerty and maintenance rules.

Third party funding is very limited or unusual in Ireland.

Therefore, the Government provides for overcoming this in terms of support, is to waive the court fees for the QE.
The General Scheme provides that where the Court is assessing the admissibility of a representative action, it shall have regard to the funding sources of a representative action.

The QE, as a claimant party, would cover the overall costs.

For example, if the costs are awarded against them, the usual principle applies in terms of court costs.

The Committee raised concerns in how an entity would fund any prospective court action and actions further legislation can take to resolve this issue.
The Committee further raised the risk of designating a public body as a QE should the State then have to financially support the action.

The CAI put forward the case that NGOs or non-profits are not lining up to become QEs due to the cost burden and, because they just do not have the capacity to do it.

The exact specification of costs incurred are unpredictable to estimate as each collective action will be different.
CAI highlighted in their evidence an initiative undertaken by a Portuguese organisation to advise citizens in respect of an intention to take a case and ask the citizens to opt in.

The advertisement cost was €175,000.

The CCPC agreed with the Committee at the second public hearing that the funding of QEs is a fundamentally important issue, and the issue may require a change in the proposed Bill.
The Directive gives a number of examples of ways in which the funding issues may be addressed through both public and private funding of litigation.

The CCPC contends this may be challenging as it requires cross- departmental engagement with the Department of Justice on matters outside the remit of the Department of Enterprise, Trade and Employment.
The ICCL is concerned unless the Bill provides appropriate external funding arrangements it will abrogate the right to take collective redress actions, and Ireland’s transposition of the Directive will breach EU Law.
The ICCL contends Article 20(1) of the Directive provides that Member States shall take account of the “non-profit making character” of QEs and ensure that lack of Page 24 of 50 Page 25 of 50 Page 25 of 50 REPORT ON THE PRE-LEGISLATIVE SCRUTINY OF THE GENERAL SCHEME OF THE REPRESENTATIVE ACTIONS FOR THE PROTECTION OF THE COLLECTIVE INTERESTS OF CONSUMERS BILL, 2022 Report on the Pre-Legislative Scrutiny of the General Scheme of the Representative Actions for the Protection of the Collective Interests of Consumers Bill, 2022 funding is not a bar to bringing representative actions.
The ICCL is keen to stress the draft Bill must enable non-profit organisations to source funding for collective actions.

The ICCL understands the issues with this requirement under Irish Law.

The ICCL is concerned the draft legislation does not provide any alternative funding mechanism.

There is no provision for legal aid, nor a public fund.

There is a provision for charging a “modest entry fee” to consumers, but that is evidently entirely inadequate to fund complex cross border multi party litigation.
The Committee is concerned that the vast cost burden may be an obstacle to many consumers seeking to achieve redress.

The Committee is further concerned that groups who genuinely require access to this redress will not be accounted for and may be excluded due to funding issues.

NNoommiinnaall ffeeee Head 20 clarifies that the Head 7(3) fee should be a modest fee to be determined by the Minister.

A QE can charge consumers a nominal fee to take a case on their behalf.
There is a need for a pre-litigation consultation.

Under the proposed bill the QE would be expected to try to avoid significant costs by trying to resolve the issue before it gets as far as the court.

Ultimately, one of the benefits of the proposed legislation is that the consumers themselves bear no costs.

This is also stated in Head 11(7) of the General Scheme.

Ibec contend it is right that Ireland chose to adopt the option of requiring consumers to pay a modest entry fee.
This would be more viable then allowing public funding for collective proceedings.

It would also avoid undesirable champerty being legalised in Ireland.

Requiring the payment of a modest entry fee would efficiently guarantee the consumer’s consent and engagement in the collective action.

Entry fees assist QEs with the financial burden of acting in collective actions.
Ibec submits it is reasonable to expect that consumers seeking to benefit from a class action taken on their behalf should make a small and reasonable contribution to the QE, which after-all is to be a non-profit organisation.
The payment of such a fee may enable the QE to cover part of the costs of the action, to supplement any public resources, while maintaining its independence from funding entities that have Page 26 of 50 Page 26 of 50 TUARASCÁIL MAIDIR LEIS AN NGRINNSCRÚDÚ RÉAMHREACHTACH AR SCÉIM GHINEARÁLTA NA MBEART IONA-DAITHEACH LE HAGHAIDH AN BHILLE UM CHOMHLEASANNA TOMHALTÓIRÍ A CHOSAINT, 2022 Report on the Pre-Legislative Scrutiny of the General Scheme of the Representative Actions for the Protection of the Collective Interests of Consumers Bill, 2022 Tuarascáil maidir leis an nGrinnscrúdú Réamhreachtach ar Scéim Ghinearálta na mBeart Ionadaitheach le haghaidh um Chomhleasanna Tomhaltóirí an Bhille a Chosaint, 2022 funding is not a bar to bringing representative actions.
The ICCL is keen to stress the financial interests in the outcome of the action and are likely to divert the action from draft Bill must enable non-profit organisations to source funding for collective actions.

the protection of the interests of consumers.

The ICCL understands the issues with this requirement under Irish Law.

The ICCL is Head 20(2) empowers the Minister for Enterprise, Trade and Employment to concerned the draft legislation does not provide any alternative funding mechanism.
prescribe the maximum amount of the fee to be charged in regulations.

Ibec There is no provision for legal aid, nor a public fund.

There is a provision for charging suggests the entry fee could be small and could vary depending on the number of a “modest entry fee” to consumers, but that is evidently entirely inadequate to fund consumers linked to the class action (e.g., €25 for claims with >1000 consumers; complex cross border multi party litigation.
€50 for claims 500-1,000 consumers; and €100 for claims <500 consumers).

The Committee is concerned that the vast cost burden may be an obstacle to many RReemmoovvaall ooff ffeeeess consumers seeking to achieve redress.
The Committee is further concerned that Head 3(4) notes that the Minister of Justice may make regulations to provide for the groups who genuinely require access to this redress will not be accounted for and removal of fees payable to the Court by parties bringing representative actions under may be excluded due to funding issues.

the Act.
the Act.

NNoommiinnaall ffeeee In the Department’s opening statement, the Department confirmed Part 1 allows for Head 20 clarifies that the Head 7(3) fee should be a modest fee to be determined by the Minister for Justice to have a role in terms of making regulations around the the Minister.

A QE can charge consumers a nominal fee to take a case on their process of bringing a representative action to the High Court.

The Department of behalf.

There is a need for a pre-litigation consultation.


Under the proposed bill the Enterprise, Trade and Employment would engage with the Department of Justice to QE would be expected to try to avoid significant costs by trying to resolve the issue see what potential regulations might have to follow from the Directive in terms of the before it gets as far as the court.

Ultimately, one of the benefits of the proposed actual process and the matter of waiving fees.
legislation is that the consumers themselves bear no costs.

In a follow up letter from the Department to the Committee, the Department This is also stated in Head 11(7) of the General Scheme.

Ibec contend it is right that confirmed, the draft legislation provides for the elimination of all court fees for QEs Ireland chose to adopt the option of requiring consumers to pay a modest entry fee.
bringing a representative action pursuant to this legislation, and for defendant traders This would be more viable then allowing public funding for collective proceedings.

It who are defending an action.

This will reduce the upfront cost of litigation for both would also avoid undesirable champerty being legalised in Ireland.

Requiring the QEs and traders on an equal basis.

payment of a modest entry fee would efficiently guarantee the consumer’s consent and engagement in the collective action.
The Department submit further, that existing Rules of the Superior Courts and the Legal Services Regulation Act 2015 empower the High Court with discretion for Entry fees assist QEs with the financial burden of acting in collective actions.

Ibec costs orders at the conclusion of the litigation.
The draft Bill permits QEs to charge submits it is reasonable to expect that consumers seeking to benefit from a class consumers a modest entry fee (which will be capped by the Minister in regulations) action taken on their behalf should make a small and reasonable contribution to the to assist with managing the cost of conducting litigation.

QE, which after-all is to be a non-profit organisation.
The payment of such a fee may enable the QE to cover part of the costs of the action, to supplement any public resources, while maintaining its independence from funding entities that have Page 26 of 50 Page 27 of 50 Page 27 of 50 REPORT ON THE PRE-LEGISLATIVE SCRUTINY OF THE GENERAL SCHEME OF THE REPRESENTATIVE ACTIONS FOR THE PROTECTION OF THE COLLECTIVE INTERESTS OF CONSUMERS BILL, 2022 Report on the Pre-Legislative Scrutiny of the General Scheme of the Representative Actions for the Protection of the Collective Interests of Consumers Bill, 2022 RReeccoommmmeennddaattiioonn The Committee recommends that the entry fee should be small to not create additional obstacles to redress and consideration could be made for it to vary dependent on the number of consumers linked to the class action.
LLeeggaall aaiidd The CCPC submit that in any legal aid, the funding body must judge whether the case meets the criteria and has a reasonable prospect of success and other matters.

Legal aid is one possible model but there is obviously a policy issue with public funding of that nature.

There are models that enable third parties to fund litigation and recover the costs of the funding if the litigation is won.

The CCPC would be cautious about models where funders get a percentage of the damages awarded.
The issues surrounding how to reform litigation funding in a way that strikes an appropriate balance are important but and are also a matter for the Department of Justice.

Key Issue 5 - Third party litigation funding CChhaammppeerrttyy aanndd MMaaiinntteennaannccee Ireland’s laws of champerty and maintenance prohibit the third-party litigation funding that is available in every other European country.

(Greece is a partial exception).

The United Kingdom did away with champerty and maintenance in 1967.
Champerty and Maintenance are the crimes and torts in common law systems, which prevent the funding of a civil action by uninvolved third parties.

Maintenance occurs where a third party supports litigation without just cause while Champerty occurs where a third party supports litigation without just cause in return for a share of the proceeds.
Under Irish legislation, the ancient prohibitions on champerty and maintenance remain in place in Ireland, despite having been abolished in most other common law jurisdictions.

Litigation funding or case funding is not available in Ireland.

Third-party litigation funding is prohibited in Ireland as constituting the torts of maintenance and champerty.

This was confirmed by the Supreme Court in 2017.
Page 28 of 50 Page 28 of 50 TUARASCÁIL MAIDIR LEIS AN NGRINNSCRÚDÚ RÉAMHREACHTACH AR SCÉIM GHINEARÁLTA NA MBEART IONA-DAITHEACH LE HAGHAIDH AN BHILLE UM CHOMHLEASANNA TOMHALTÓIRÍ A CHOSAINT, 2022 Report on the Pre-Legislative Scrutiny of the General Scheme of the Representative Actions for the Protection of the Collective Interests of Consumers Bill, 2022 Tuarascáil maidir leis an nGrinnscrúdú Réamhreachtach ar Scéim Ghinearálta na mBeart Ionadaitheach le haghaidh um Chomhleasanna Tomhaltóirí an Bhille a Chosaint, 2022 RReeccoommmmeennddaattiioonn The Committee recommends that the entry fee should be small to not create additional obstacles to redress and consideration could be made for it to vary dependent on the number of consumers linked to the class action.
LLeeggaall aaiidd Justice.

The CCPC submit that in any legal aid, the funding body must judge whether the case meets the criteria and has a reasonable prospect of success and other matters.

Legal aid is one possible model but there is obviously a policy issue with public funding of that nature.

There are models that enable third parties to fund litigation and recover the costs of the funding if the litigation is won.
The CCPC would be cautious about models where funders get a percentage of the damages awarded.

The issues surrounding how to reform litigation funding in a way that strikes an appropriate balance are important but and are also a matter for the Department of Key Issue 5 - Third party litigation funding CChhaammppeerrttyy aanndd MMaaiinntteennaannccee Ireland’s laws of champerty and maintenance prohibit the third-party litigation funding United Kingdom did away with champerty and maintenance in 1967.
Champerty and Maintenance are the crimes and torts in common law systems, which prevent the funding of a civil action by uninvolved third parties.

Maintenance occurs where a third party supports litigation without just cause while Champerty occurs where a third party supports litigation without just cause in return for a share of the proceeds.
Under Irish legislation, the ancient prohibitions on champerty and maintenance remain in place in Ireland, despite having been abolished in most other common law jurisdictions.

Litigation funding or case funding is not available in Ireland.

Third-party litigation funding is prohibited in Ireland as constituting the torts of maintenance and champerty.

This was confirmed by the Supreme Court in 2017.


The Law Society provide in their evidence, that the former Chief Justice of the Supreme Court, Mrs. Justice Denham, recognised that a statute dealing with maintenance and champerty, the Maintenance and Embracery Act 1634, prohibited this type of activity of third-party funding.

It was further stated in the case that this would need to be changed by the Legislature.

Currently, under Irish law, third-party litigation funding is unlawful.
The General Scheme does not alter the existing prohibition on third-party funding of litigation under Irish law.

The Department confirmed the State will neither fund QEs that are not already established with the State following their designation, nor will it underwrite the costs for legal challenges.

Under the draft legislation, the entity will have to fund itself.
Under the laws of champerty and maintenance, the Department are very limited in respect of what they can do to fund bodies in cases like this.

The QE would have to source funding, and as a result, this is a considerable risk when deciding to apply to become a designated QE.

The CCPC notes the availability of funding for QEs will be crucial to their success.
The CCPC welcomes the possibility of removing court fees payable by QEs taking a representative action, but the CCPC notes that such fees are not likely to be material that is available in every other European country.

(Greece is a partial exception).

The in the overall cost of a representative action.

The CCPC contends these prohibitions will severely limit the ability of QEs to fund representative actions.
The CCPC therefore welcomes the recommendation in the 2020 Review of the Administration of Civil Justice, led by Justice Peter Kelly, that the rules on funding of litigation should be modernised.

The CCPC comments are further supported in both the Law Society submission and the ICC submission, with each stakeholder noting that the need to address the risk of “commoditisation” of litigation.

The Kelly Report noted in 2020 that third party funding enabled access to justice for the poorly resourced claimant.
The ICCL further suggest that the Directive and the General Scheme establish safeguards against what the Kelly Report called “commoditisation” of litigation and Page 28 of 50 Page 29 of 50 Page 29 of 50 REPORT ON THE PRE-LEGISLATIVE SCRUTINY OF THE GENERAL SCHEME OF THE REPRESENTATIVE ACTIONS FOR THE PROTECTION OF THE COLLECTIVE INTERESTS OF CONSUMERS BILL, 2022 Report on the Pre-Legislative Scrutiny of the General Scheme of the Representative Actions for the Protection of the Collective Interests of Consumers Bill, 2022 funders’ undue influence.
Head 9 of the General Scheme requires that a judge scrutinise a third-party funder of litigation to ensure there are no conflicts.

Head 12 requires that a judge examine a settlement with the same intention.

In their written submission, Ibec contend Head 9(5 – 11) of the General Scheme is key area that warrants special attention.

The wording of the Directive provides for third-party funding of representative actions, under certain circumstances and if permitted under national law.
Ibec further note introducing such funding measures through this specific piece of legislation are fundamentally at odds with existing Irish civil procedure.

Careful consideration must be given to measures implemented under Head 9(5) and (6) of the General Scheme, how it will be consistent with Irish law, and how it will operate in practice.

Ibec supported the examination in this area by the Civil Justice Review Group.
They believe the Committee should consider whether the recommendations should take the lead in determining the approach to be taken here, not the national transposition process of Directive.

The European Parliament notes that third-party litigation funding in Europe is “largely unregulated”.
The Review Group expressed concern that such funding without sufficient, strict, and robust safeguards would lead to the “commodisation” of litigation and would incentivise a litigation culture that would quickly overburden the court system.

It must also be noted that the Department of Justice has said that limited third-party funding of international arbitration may be introduced by amendment to the Courts and Civil Law (Miscellaneous Provisions) Bill 2022, which is before the Dáil at present.
Ibec recommends Champerty should not be introduced solely to satisfy the requirements set out in the Directive.

If it is to be permitted, it should be in accordance with wider civil justice reform efforts and guided by policy.
The ICCL state that the General Scheme has a fatal contradiction: it allows non-profit organisations to bring collective redress litigation in Ireland, but it also preserves the Page 30 of 50 Page 30 of 50 TUARASCÁIL MAIDIR LEIS AN NGRINNSCRÚDÚ RÉAMHREACHTACH AR SCÉIM GHINEARÁLTA NA MBEART IONA-DAITHEACH LE HAGHAIDH AN BHILLE UM CHOMHLEASANNA TOMHALTÓIRÍ A CHOSAINT, 2022 Report on the Pre-Legislative Scrutiny of the General Scheme of the Representative Actions for the Protection of the Collective Interests of Consumers Bill, 2022 Tuarascáil maidir leis an nGrinnscrúdú Réamhreachtach ar Scéim Ghinearálta na mBeart Ionadaitheach le haghaidh um Chomhleasanna Tomhaltóirí an Bhille a Chosaint, 2022 funders’ undue influence.
Head 9 of the General Scheme requires that a judge prohibition against their raising the funds to do so.

The ICCL support the consensus scrutinise a third-party funder of litigation to ensure there are no conflicts.

Head 12 that the law on litigation funding should be reformed.

However, they also contend requires that a judge examine a settlement with the same intention.

that reform is likely to be too late for the transposition of the Directive.
In their written submission, Ibec contend Head 9(5 – 11) of the General Scheme is The ICCL believe people’s fundamental rights are at issue because the General key area that warrants special attention.

The wording of the Directive provides for Scheme enables collective redress actions under the GDPR and ePrivacy Directive.
third-party funding of representative actions, under certain circumstances and if The ICCL conclude the General Scheme should be amended to permit litigation permitted under national law.

funding for representative actions.

Heads 9 and 12 of the General Scheme already Ibec further note introducing such funding measures through this specific piece of provide necessary safeguards against undue influence.

legislation are fundamentally at odds with existing Irish civil procedure.
Careful The ICCL contend Ireland’s prohibition on litigation funding is unusual, and there is consideration must be given to measures implemented under Head 9(5) and (6) of momentum toward lifting it to ensure access to justice.

But the immediate deadlines the General Scheme, how it will be consistent with Irish law, and how it will operate for transposing the Collective Redress Directive require more rapid action.

in practice.
in practice.

Ibec supported the examination in this area by the Civil Justice Review Group.

They The simplest solution is for the legislation that transposes the Directive to provide believe the Committee should consider whether the recommendations should take that the laws of champerty and maintenance do not apply to collective redress the lead in determining the approach to be taken here, not the national transposition cases.
The ICCL submit a second solution; legal aid could be extended to QEs to process of Directive.

The European Parliament notes that third-party litigation fund collective redress cases, or a public fund established for that same purpose.

funding in Europe is “largely unregulated”.


The EJF contend the Directive should be implemented in such a way that loosening The Review Group expressed concern that such funding without sufficient, strict, and the outright ban does not lead to an ‘explosion’ of collective actions in Ireland.

It robust safeguards would lead to the “commodisation” of litigation and would should be avoided that the funding of court cases becomes a lucrative business.
incentivise a litigation culture that would quickly overburden the court system.

Consumers who have suffered damage caused by irresponsible traders should In their written submission, the ICCL proposed two solutions to the issue of funding.

receive 100% of the compensation that is due to them, not just a fraction that is left after funding costs have been accounted for.
and Civil Law (Miscellaneous Provisions) Bill 2022, which is before the Dáil at The EJF expressed concern with third party funding as intermediaries divert excessive amounts from claimants’/beneficiaries’ compensation into their own pockets.

The EJF contend the problem is the disconnect between the profit-making interest of the funders, and the right of claimants/beneficiaries to receive full compensation for their grievances which urges the call for an independent oversight function.
It must also be noted that the Department of Justice has said that limited third-party funding of international arbitration may be introduced by amendment to the Courts present.

Ibec recommends Champerty should not be introduced solely to satisfy the requirements set out in the Directive.

If it is to be permitted, it should be in accordance with wider civil justice reform efforts and guided by policy.
The ICCL state that the General Scheme has a fatal contradiction: it allows non-profit organisations to bring collective redress litigation in Ireland, but it also preserves the Page 30 of 50 Page 31 of 50 Page 31 of 50 REPORT ON THE PRE-LEGISLATIVE SCRUTINY OF THE GENERAL SCHEME OF THE REPRESENTATIVE ACTIONS FOR THE PROTECTION OF THE COLLECTIVE INTERESTS OF CONSUMERS BILL, 2022 Report on the Pre-Legislative Scrutiny of the General Scheme of the Representative Actions for the Protection of the Collective Interests of Consumers Bill, 2022 The EJF submitted the societal concerns of third-party funding, if not properly regulated.
This option could also lead to excessive costs, for consumers, be it in the guise of increased prices for future customers of companies successfully targeted, be it in higher premia for liability and insurance and including opportunistic claims affecting innovation as well as the competitiveness of business.
The EJF believes if third-party funding were introduced it will require independent supervision of the funding activity for representative actions and scrutiny of funding agreements by a competent independent authority.

The EJF further support, if introduced, there should be full transparency of funding agreements for the benefits of all involved in redress actions.

The EJF supports that there should be no undue influence on litigation conduct or settlement.
TThhee QQuuéébbeecc MMooddeell The EJF support an alternative to allowing private litigation funding.

They recommend relying on a publicly organised special fund for this purpose.

The EJF support the example of the Canadian Province of Québec.
Such a fund, and the small body that it is run by, can act as a source of advice and an alternative source of funding that is free of the excessive costs of private litigation funding as well as having an indirect regulatory effect on private third-party funding, as it does in Québec.

The EJF recommends the introduction of measures to regulate and supervise private litigation finance.
They further support the creation of a state-administered fund that would contribute to the financing of representative actions for example, based on the fund-based model in Québec, Canada.

All witnesses before the Joint Committee’s hearing on the matter in September highlighted the fact that litigation funding is extremely important to ensure that the legislation transposing the Directive is effective and protects consumer’s rights.
Page 32 of 50 Page 32 of 50 TUARASCÁIL MAIDIR LEIS AN NGRINNSCRÚDÚ RÉAMHREACHTACH AR SCÉIM GHINEARÁLTA NA MBEART IONA-DAITHEACH LE HAGHAIDH AN BHILLE UM CHOMHLEASANNA TOMHALTÓIRÍ A CHOSAINT, 2022 Report on the Pre-Legislative Scrutiny of the General Scheme of the Representative Actions for the Protection of the Collective Interests of Consumers Bill, 2022 Tuarascáil maidir leis an nGrinnscrúdú Réamhreachtach ar Scéim Ghinearálta na mBeart Ionadaitheach le haghaidh um Chomhleasanna Tomhaltóirí an Bhille a Chosaint, 2022 The EJF submitted the societal concerns of third-party funding, if not properly regulated.
This option could also lead to excessive costs, for consumers, be it in the guise of increased prices for future customers of companies successfully targeted, be it in higher premia for liability and insurance and including opportunistic claims affecting innovation as well as the competitiveness of business.
The EJF believes if third-party funding were introduced it will require independent supervision of the funding activity for representative actions and scrutiny of funding agreements by a competent independent authority.

The EJF further support, if introduced, there should be full transparency of funding agreements for the benefits of all involved in redress actions.

The EJF supports that there should be no undue influence on litigation conduct or settlement.
TThhee QQuuéébbeecc MMooddeell The EJF support an alternative to allowing private litigation funding.

They recommend relying on a publicly organised special fund for this purpose.

The EJF support the example of the Canadian Province of Québec.
Such a fund, and the small body that it is run by, can act as a source of advice and an alternative source of funding that is free of the excessive costs of private litigation funding as well as having an indirect regulatory effect on private third-party funding, as it does in Québec.

The EJF recommends the introduction of measures to regulate and supervise private litigation finance.
They further support the creation of a state-administered fund that would contribute to the financing of representative actions for example, based on the fund-based model in Québec, Canada.

All witnesses before the Joint Committee’s hearing on the matter in September highlighted the fact that litigation funding is extremely important to ensure that the legislation transposing the Directive is effective and protects consumer’s rights.
RReeccoommmmeennddaattiioonn The Committee recommends proper provision is made for representative actions and litigation funding.

These measures will aim to ensure that the cost of proceedings related to representative actions do not prevent qualified entities from effectively exercising their right to seek redress or injunctive measures.

The Committee is concerned that the vast cost burden may be an obstacle to many consumers seeking to achieve redress.
The Committee is further concerned that groups who genuinely require access to this redress will not be accounted for and may be excluded due to funding issues.

Key issue 6 – High Court 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.
Head 3(4) notes that the Minister of Justice may make regulations to provide for the removal of fees payable to the Court by parties bringing representative actions under the Act.

The draft legislation provides that Courts could make rules on matters such as admissibility, evidence, and the means of appeal.

Under the proposed legislation, the High Court will not allow a claim to proceed if funding is not assured.

The High Court has a role here in deciding on the admissibility of a case.
Representative actions may be brought on a domestic basis before the High Court by QEs designated in Ireland, and on a cross-border basis by one or more QEs designated elsewhere in the EU.

As the total number of consumers represented in any action may be large, it is likely that some cases will exceed the monetary jurisdiction of the Circuit Court.

The designation of the High Court will ensure that existing High Court rules, practice and procedure for civil litigation will apply to representative actions.
Amendments to these existing procedures may be necessary to deal with the novel aspects of representative actions, and this will be undertaken, if necessary, by the Superior Courts Rules Committee in the normal way.
Page 32 of 50 Page 33 of 50 Page 33 of 50 REPORT ON THE PRE-LEGISLATIVE SCRUTINY OF THE GENERAL SCHEME OF THE REPRESENTATIVE ACTIONS FOR THE PROTECTION OF THE COLLECTIVE INTERESTS OF CONSUMERS BILL, 2022 Report on the Pre-Legislative Scrutiny of the General Scheme of the Representative Actions for the Protection of the Collective Interests of Consumers Bill, 2022 The CCPC contends any such rules could set important criteria for representative actions, such as the minimum number of consumers affected, and how similar their claims must be.
The CCPC also considers that it would be useful if the Courts provided for “fast-tracking” of representative actions, both to provide faster redress when an action succeeds and to minimise the costs that are inevitably incurred when an action is prolonged.

The Law Society contend that broader reforms involve balancing.

There is a benefit in providing greater access to justice for small harm claims that otherwise would not be able to obtain access given the costs we are talking about.
On the other hand, taken to the extreme, a regime can promote excessive litigation.

The Law Reform Commission report from 2005, as accompanied by the Kelly report in 2020, provide what the Law Society of Ireland thinks is a balanced way in which consumers can have direct access to collective actions other than via the scheme in the draft legislation.
This would involve a careful certification process by the President of the High Court and an opt-in arrangement rather than an opt-out, with a relatively strict legal test to be applied by the President of the High Court that would essentially be assessing if the multiparty action is fair, efficient, and justified.

Head 12 of the General Scheme sets the basis for agreeing settlements, as well as stating that settlements will be subject to scrutiny and approval of the Court.
It is important that the Court has the right, under Head 12(4), not to approve settlements deemed to be unfair.

Ibec advocates settlements must reflect the substantive merits of the claim.

Generally, QEs and traders should be more than capable of weighing the fairness of settlements and accepting or rejecting without court involvement.

Ibec believes this must be balanced with a need to keep settlement pressure to a minimum.

There may be occasions where the involvement of the court is warranted.
This may apply in the case of a settlement being in breach of a specific legislative requirement, which would require court intervention and not approving the settlement.
Page 34 of 50 Page 34 of 50 TUARASCÁIL MAIDIR LEIS AN NGRINNSCRÚDÚ RÉAMHREACHTACH AR SCÉIM GHINEARÁLTA NA MBEART IONA-DAITHEACH LE HAGHAIDH AN BHILLE UM CHOMHLEASANNA TOMHALTÓIRÍ A CHOSAINT, 2022 Report on the Pre-Legislative Scrutiny of the General Scheme of the Representative Actions for the Protection of the Collective Interests of Consumers Bill, 2022 Tuarascáil maidir leis an nGrinnscrúdú Réamhreachtach ar Scéim Ghinearálta na mBeart Ionadaitheach le haghaidh um Chomhleasanna Tomhaltóirí an Bhille a Chosaint, 2022 The CCPC contends any such rules could set important criteria for representative actions, such as the minimum number of consumers affected, and how similar their claims must be.
The CCPC also considers that it would be useful if the Courts provided for “fast-tracking” of representative actions, both to provide faster redress when an action succeeds and to minimise the costs that are inevitably incurred when an action is prolonged.

The Law Society contend that broader reforms involve balancing.

There is a benefit in providing greater access to justice for small harm claims that otherwise would not be able to obtain access given the costs we are talking about.
On the other hand, taken to the extreme, a regime can promote excessive litigation.

The Law Reform Commission report from 2005, as accompanied by the Kelly report in 2020, provide what the Law Society of Ireland thinks is a balanced way in which consumers can have direct access to collective actions other than via the scheme in the draft legislation.
This would involve a careful certification process by the President of the High Court and an opt-in arrangement rather than an opt-out, with a relatively strict legal test to be applied by the President of the High Court that would essentially be assessing if the multiparty action is fair, efficient, and justified.

Head 12 of the General Scheme sets the basis for agreeing settlements, as well as stating that settlements will be subject to scrutiny and approval of the Court.
It is important that the Court has the right, under Head 12(4), not to approve settlements deemed to be unfair.

Ibec advocates settlements must reflect the substantive merits of the claim.

Generally, QEs and traders should be more than capable of weighing the fairness of settlements and accepting or rejecting without court involvement.

Ibec believes this must be balanced with a need to keep settlement pressure to a minimum.

There may be occasions where the involvement of the court is warranted.
This may apply in the case of a settlement being in breach of a specific legislative requirement, which would require court intervention and not approving the settlement.
Key issue 7 – Secondary Legislation Head 16 (1) transposes the conditions laid down in Article 4(3), of the Directive on the designation of an organisation as a QE for the purposes of taking domestic or cross-border representative actions that the entity should be an association with the primary aim of protecting the interests of consumers.

The CAI expressed concern with specifics in relation to how the designation process will be dealt with under future Ministerial Regulations.
In relation to Head 16 (2) – the CAI are concerned that additional conditions could be introduced militating against the CAI from applying to be a QE.

The CAI are further concerned with the Department of Enterprise, Trade & Employment as the designated authority to inform the European Commission of designated QEs.

The concern arises from the stringent criteria to apply before designating anybody.
The CAI suggests that even if such measures were introduced by secondary legislation, the legislation places considerable administrative burdens on the QE e.g., provision of information about representative actions online, transparency as to the funding of the QE to avoid conflicts of interest, interactions with consumers prior to commencement of a representative action.

The CAI have suugested there should be a requirement of assistance to enhance resources to assist with these burdens.
The CAI highlight article 20(1) and (2) of the Directive.

They contend the issue is not adequately provided for in the proposed primary legislation in relation to costs and funding and enacting further issues yet to be provided for by Ministerial Regulations and changes to Superior Court Rules.

The CAI are concerned about the representative action process because it references that it is via ministerial regulations.
The provision for many details to be provided for by way of regulation provides little guidance into the application process or proposed timeline.
Page 34 of 50 Page 35 of 50 Page 35 of 50 REPORT ON THE PRE-LEGISLATIVE SCRUTINY OF THE GENERAL SCHEME OF THE REPRESENTATIVE ACTIONS FOR THE PROTECTION OF THE COLLECTIVE INTERESTS OF CONSUMERS BILL, 2022 Report on the Pre-Legislative Scrutiny of the General Scheme of the Representative Actions for the Protection of the Collective Interests of Consumers Bill, 2022 The General Scheme includes provisions for the Minister to make regulations to administer the designation and monitoring of QEs, and for the Minister for Justice to make regulations relating to the conduct of representative actions, where necessary.
The Committee noted the concerns of the stakeholders, and the proposed regulations may need further clarification to provide greater transparency for consumers.

RReeccoommmmeennddaattiioonnss 1.

The Committee recommends a detailed application, criteria and designation process for Qualified Entities to be prescribed in legislation.

2.
2.

The General Scheme includes provisions for the Minister to make regulations to administer the designation and monitoring of Qualified Entities, and for the Minister for Justice to make regulations relating to the conduct of representative actions, where necessary.

The Committee noted the concerns of the stakeholders, and the proposed regulations may need further clarification to provide greater transparency for consumers.
Key issue 8 – The Role of Regulatory/investigatory bodies The Department confirmed that the proposed legislation, in no way changes any of the regulatory or investigatory roles of statutory bodies, and nor does it undermine or supplement any enforcement powers which they enjoy.

The purpose of the draft legislation is to permit consumers who have been harmed by the act of a trader to group together and collectively seek redress or injunctive relief.
The Department express further, it is likely that the outcome of any investigation by a regulatory body will provide a QE with the evidence it requires to launch a representative action on behalf of consumers who have been harmed by the act which was the subject matter of the investigation.
However, a decision to bring an Page 36 of 50 Page 36 of 50 TUARASCÁIL MAIDIR LEIS AN NGRINNSCRÚDÚ RÉAMHREACHTACH AR SCÉIM GHINEARÁLTA NA MBEART IONA-DAITHEACH LE HAGHAIDH AN BHILLE UM CHOMHLEASANNA TOMHALTÓIRÍ A CHOSAINT, 2022 Report on the Pre-Legislative Scrutiny of the General Scheme of the Representative Actions for the Protection of the Collective Interests of Consumers Bill, 2022 Tuarascáil maidir leis an nGrinnscrúdú Réamhreachtach ar Scéim Ghinearálta na mBeart Ionadaitheach le haghaidh um Chomhleasanna Tomhaltóirí an Bhille a Chosaint, 2022 consumers.
RReeccoommmmeennddaattiioonnss where necessary.

consumers.

The General Scheme includes provisions for the Minister to make regulations to action will be a matter for the QE and is largely fact-dependent on the outcome of the administer the designation and monitoring of QEs, and for the Minister for Justice to investigation and the nature of any enforcement orders made against the trader.

make regulations relating to the conduct of representative actions, where necessary.
The General Scheme includes a mechanism whereby consumers would be The Committee noted the concerns of the stakeholders, and the proposed prevented from receiving double compensation from the same trader for the same regulations may need further clarification to provide greater transparency for cause of action.

Key issue 9 – Informal Consultations The General Scheme transposes a discretionary provision in the Directive which 1.
The Committee recommends a detailed application, criteria and designation requires a QE to attempt to engage in a consultation with a trader before seeking an process for Qualified Entities to be prescribed in legislation.

2.

The General Scheme includes provisions for the Minister to make regulations to injunction in court.

The purpose of this early pre-litigation engagement is to petition the trader to stop their actions without need to recourse to the courts.
administer the designation and monitoring of Qualified Entities, and for the Minister The draft legislation provides that a period of two weeks must elapse between the for Justice to make regulations relating to the conduct of representative actions, QE contacting the trader and being able to seek an injunction if the trader has not The Committee noted the concerns of the stakeholders, and the proposed engaged in the process.
This time period does not apply to QEs seeking an interim injunction from the Court.

regulations may need further clarification to provide greater transparency for The purpose of this provision is to provide an early, low-cost mechanism to stop traders from engaging in behaviour which may harm the collective interests of consumers without recourse to the court.
Where the initial engagement between the parties is progressing well, the parties may mutually agree to extend this consultation Key issue 8 – The Role of Regulatory/investigatory bodies period.

The Department confirmed that the proposed legislation, in no way changes any of the regulatory or investigatory roles of statutory bodies, and nor does it undermine or supplement any enforcement powers which they enjoy.
The purpose of the draft legislation is to permit consumers who have been harmed by the act of a trader to group together and collectively seek redress or injunctive relief.

The Department express further, it is likely that the outcome of any investigation by a regulatory body will provide a QE with the evidence it requires to launch a representative action on behalf of consumers who have been harmed by the act which was the subject matter of the investigation.
However, a decision to bring an Head 10(5) states that prior to a QE bringing an action before the Courts seeking an Injunctive Measure.

The CAI impressed on the Committee that this very important matter has been omitted in the wording of this section of the General Scheme.
The CAI further contend this is a crucial issue for the Committee to consider and that it must be amended in the draft legislation otherwise the prior consultation could be a means to entirely undermine the consumer representative action by obstructive lengthy consultations.

The CAI support injunctive measures introduced in a quick & timely fashion.
Page 36 of 50 Page 37 of 50 Page 37 of 50 REPORT ON THE PRE-LEGISLATIVE SCRUTINY OF THE GENERAL SCHEME OF THE REPRESENTATIVE ACTIONS FOR THE PROTECTION OF THE COLLECTIVE INTERESTS OF CONSUMERS BILL, 2022 Report on the Pre-Legislative Scrutiny of the General Scheme of the Representative Actions for the Protection of the Collective Interests of Consumers Bill, 2022 The CCPC support engagement as a means of resolution to support due process rights in the public sphere.
The CAI made the point that it is not against consultation prior to injunction but is against the consultation process being so extended that it renders injunctions pointless.

The CCPC agree and support the CAI view that if injunctions are appropriate, the consultation process should not be unduly prolonged.

The CAI advocate for the two-week timeframe mentioned in the Directive preamble or an alternative reasonable timeframe.
In contrast, Ibec believe the suggested period of two weeks set down in Head 10(9) is far too short.

It is reasonable that this should be extended by way of amendment.

Ibec advocate for careful consideration regarding injunction measures to ensure these can be both operational in this jurisdiction, and that they are proportionate.

The usual court tests for injunctive relief should apply at the very least.
QEs will be required to engage with traders on the alleged infringement before injunction measures are sought as set down in Head 10(7-11) of the General Scheme.

Ibec contends strict guidance will be required on the grounds for seeking an injunction.

It should only be used as a last resort, and only after attempts to achieve cessation of the infringement with the trader has been exhausted as it is expensive and time-consuming.
Page 38 of 50 Page 38 of 50 TUARASCÁIL MAIDIR LEIS AN NGRINNSCRÚDÚ RÉAMHREACHTACH AR SCÉIM GHINEARÁLTA NA MBEART IONA-DAITHEACH LE HAGHAIDH AN BHILLE UM CHOMHLEASANNA TOMHALTÓIRÍ A CHOSAINT, 2022 Report on the Pre-Legislative Scrutiny of the General Scheme of the Representative Actions for the Protection of the Collective Interests of Consumers Bill, 2022 Tuarascáil maidir leis an nGrinnscrúdú Réamhreachtach ar Scéim Ghinearálta na mBeart Ionadaitheach le haghaidh um Chomhleasanna Tomhaltóirí an Bhille a Chosaint, 2022 The CCPC support engagement as a means of resolution to support due process rights in the public sphere.
The CAI made the point that it is not against consultation prior to injunction but is against the consultation process being so extended that it renders injunctions pointless.

The CCPC agree and support the CAI view that if injunctions are appropriate, the consultation process should not be unduly prolonged.

The CAI advocate for the two-week timeframe mentioned in the Directive preamble or an alternative reasonable timeframe.
In contrast, Ibec believe the suggested period of two weeks set down in Head 10(9) is far too short.

It is reasonable that this should be extended by way of amendment.

Ibec advocate for careful consideration regarding injunction measures to ensure these can be both operational in this jurisdiction, and that they are proportionate.

The usual court tests for injunctive relief should apply at the very least.
QEs will be required to engage with traders on the alleged infringement before injunction measures are sought as set down in Head 10(7-11) of the General Scheme.

Ibec contends strict guidance will be required on the grounds for seeking an injunction.

It should only be used as a last resort, and only after attempts to achieve cessation of the infringement with the trader has been exhausted as it is expensive and time-consuming.
Key issue 10 - Domestic Representative Actions The General Scheme proposes that the Minister for Enterprise, Trade and Employment will designate entities as qualified to bring domestic representation actions where a relatively strict set of criteria are complied with by the applicant entity.

The Law Society highlighted the Directive does not stipulate what criteria Member States may use to designate an entity as qualified to bring domestic representation.
The Law Society note also that the Directive recommends that consumer organisations should play an active role in ensure the relevant provisions of Union law are complied with.

They should all be considered well placed to apply for the status of QE in accordance with national law.
The Law Society further supports Article 4(4) of the Directive, this requires Member States to ensure that entities, particularly consumer organisation are eligible to be designated as QEs for the purposes of bringing domestic representative or cross- border representative actions, or both.

In respect of purely domestic representation, the Directive also allows that for domestic QEs these stipulations do not have to apply.
It is not a requirement of the Directive that the six stipulations that are included must be applied in respect of domestic representation actions.

Member States have greater freedom to adopt different criteria under the Directive.

Ibec submit it is appropriate that the proposed legislation makes no difference in the criteria used for cross-border QEs to QEs seeking designation to bring domestic actions.
A level of must be consistency across both domestic and cross border actions and the designation of QEs (Head 16).

It is important that Ireland maintains full compliance with the criteria under Article 4(3) of the Directive for all QEs seeking designation here.

This is confirmed in Heads 5 & 6 of the General Scheme.

Ibec contends QEs from across the EU looking to take cross-border actions here must be able to meet the criteria set-out.

There must not be a lower threshold for domestic QEs.
This would minimise the risk of ‘forum shopping’.
It may disproportionately affect Irish businesses, should Ireland be seen as a plaintiff Page 38 of 50 Page 39 of 50 Page 39 of 50 REPORT ON THE PRE-LEGISLATIVE SCRUTINY OF THE GENERAL SCHEME OF THE REPRESENTATIVE ACTIONS FOR THE PROTECTION OF THE COLLECTIVE INTERESTS OF CONSUMERS BILL, 2022 Report on the Pre-Legislative Scrutiny of the General Scheme of the Representative Actions for the Protection of the Collective Interests of Consumers Bill, 2022 friendly jurisdiction, based on differential criteria between domestic and cross-border QEs.
This in turn would have negative consequences for Irish-established businesses.

The EJF believes care should be taken in Ireland with respect to cross-border actions as it is the only common law jurisdiction left in the Union.

The EJF is concerned that Ireland may become exploited as a venue for discovery attempts for (collective) actions in other Member States.

Key issue 11 – Miscellaneous matters LLiimmiittaattiioonn There is a limitation in the draft legislation as it is listed in the schedule.
Action can only be taken for breaches of a very specific set of consumer protection laws, which are all listed.

There are 66 EU laws listed in the schedule.

That is where the limitation applies.

It is for breaches of consumer rights under those pieces of legislation.
MMiinniimmuumm NNuummbbeerr ooff CCoonnssuummeerrss The Directive notes that it is up to Member States to lay down rules on various issues relating to representative 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 for the case to be heard as a representative action.

The CAI is concerned these matters are not prescribed in the proposed primary legislation.
IInnssuurraannccee The CCPC support consumers in achieving redress.

The CCPC would like to highlight the risk of a disproportionate impact on insurance where vexatious actions, or nuisance actions arise, as a result that people felt they had to settle as it was cheaper to settle than fight them in court.

The CCPC are keen to stress the importance of striking an appropriate balance, andsubmit that the mechanisms in the proposed legislation strike that balance adequately.
Page 40 of 50 Page 40 of 50 TUARASCÁIL MAIDIR LEIS AN NGRINNSCRÚDÚ RÉAMHREACHTACH AR SCÉIM GHINEARÁLTA NA MBEART IONA-DAITHEACH LE HAGHAIDH AN BHILLE UM CHOMHLEASANNA TOMHALTÓIRÍ A CHOSAINT, 2022 Report on the Pre-Legislative Scrutiny of the General Scheme of the Representative Actions for the Protection of the Collective Interests of Consumers Bill, 2022 Tuarascáil maidir leis an nGrinnscrúdú Réamhreachtach ar Scéim Ghinearálta na mBeart Ionadaitheach le haghaidh um Chomhleasanna Tomhaltóirí an Bhille a Chosaint, 2022 friendly jurisdiction, based on differential criteria between domestic and cross-border PPuubblliiccaattiioonn ooff ddeecciissiioonnss QEs.
This in turn would have negative consequences for Irish-established Head 14 of the General Scheme contains provisions relating to communications with businesses.

The EJF believes care should be taken in Ireland with respect to cross-border actions as it is the only common law jurisdiction left in the Union.

The EJF is consumers about the outcome of representative actions or settlement terms.

The Court may order either a trader and/or QE to publish information or communicate with consumers.
concerned that Ireland may become exploited as a venue for discovery attempts for Ibec strongly believes that unless absolutely warranted, there should be a limit on the requirements on information provision by traders for one key reason.

QEs will have a direct link with consumers through the representative actions taken on their behalf.

Ibec submit that the QE should having primary responsibility for communicating with consumers on the outcome of the action, which has been taken on their behalf.
Consumers will already have an established relationship with the QE.

Ireland should, therefore, limit the instances or occasions where the trader would be required to inform consumers of final decisions.

Ibec contend traders should only be required to provide such information to consumers if requested to do so by a QE, and only in exceptional circumstances.

For example, if the QE is deemed to be unable to communicate with the consumers in the action it has brought.
QQuuaalliiffiieedd eennttiittiieess ddaattaabbaassee representative action.

The CAI is concerned these matters are not prescribed in the Ibec submit a QE database should exist on a national basis for transparency and monitoring purposes.

Head 5(3) of the General Scheme refers to a list of QEs to be maintained by the European Commission.

This is to assist in establishing the bona fide position of a QE to take cross-border actions.
It should boost the transparency of the system through providing detail on each QE, representative actions ongoing, and those that have been concluded.

cheaper to settle than fight them in court.

The CCPC are keen to stress the The QE database should provide consumers and traders access to sufficient importance of striking an appropriate balance, andsubmit that the mechanisms in the information on a designated QE.
This should be based on the criteria set out for QE proposed legislation strike that balance adequately.

designation.

Consideration should be given to allowing consumers or traders to lodge complaints about a specific QE.

This would support performance monitoring, which would support the objectives set down in Heads 17, 18, 19 concerning reviews Page 40 of 50 Page 41 of 50 Page 41 of 50 (collective) actions in other Member States.
Key issue 11 – Miscellaneous matters LLiimmiittaattiioonn There is a limitation in the draft legislation as it is listed in the schedule.

Action can only be taken for breaches of a very specific set of consumer protection laws, which are all listed.

There are 66 EU laws listed in the schedule.

That is where the limitation applies.

It is for breaches of consumer rights under those pieces of legislation.
MMiinniimmuumm NNuummbbeerr ooff CCoonnssuummeerrss The Directive notes that it is up to Member States to lay down rules on various issues relating to representative 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 for the case to be heard as a proposed primary legislation.

IInnssuurraannccee The CCPC support consumers in achieving redress.
The CCPC would like to highlight the risk of a disproportionate impact on insurance where vexatious actions, or nuisance actions arise, as a result that people felt they had to settle as it was REPORT ON THE PRE-LEGISLATIVE SCRUTINY OF THE GENERAL SCHEME OF THE REPRESENTATIVE ACTIONS FOR THE PROTECTION OF THE COLLECTIVE INTERESTS OF CONSUMERS BILL, 2022 Report on the Pre-Legislative Scrutiny of the General Scheme of the Representative Actions for the Protection of the Collective Interests of Consumers Bill, 2022 and revocation of designation of a QE.
Finally, the national QE database should be connected to other Member States’ portals to support knowledge flow and transparency across the EU Single Market.

RReeccoommmmeennddaattiioonn The Committee recommends the provision of a national electronic database to track representative actions and provide monitoring and transparency.
OOnnee ssiinnggllee iinnffrraassttrruuccttuurree ffoorr aaddddrreessssiinngg mmaassss ddaammaaggee aaccttiioonnss The EJF recommend building one single infrastructure for the purpose of addressing mass damages actions for efficiency reasons.

The EJF support one single digital infrastructure for alternative dispute resolution by ombudsman entities or similar bodies, for redress orders by public authorities and for collective actions in court would offer huge synergies.
The EJF believe from a structural standpoint, remedies through ombudsman offices and interventions by supervisory authorities should be prioritised instead.

For this purpose, a mechanism that acts as gatekeeper for all the remedies available should be created as a single point of entry for consumers.

The EJF propose the establishment of a “superiority requirement” in national admission procedures that applies to all types of collective court actions, as has been done in Ontario.
The “Ontario formula” allows the state’s expensive judicial resources to be used in a collective action only if the use of such action is judged by the court in charge to be superior to all other reasonably available options that can award relief, including non-court dispute resolution bodies and regulatory redress.
Page 42 of 50 Page 42 of 50 TUARASCÁIL MAIDIR LEIS AN NGRINNSCRÚDÚ RÉAMHREACHTACH AR SCÉIM GHINEARÁLTA NA MBEART IONA-DAITHEACH LE HAGHAIDH AN BHILLE UM CHOMHLEASANNA TOMHALTÓIRÍ A CHOSAINT, 2022 Report on the Pre-Legislative Scrutiny of the General Scheme of the Representative Actions for the Protection of the Collective Interests of Consumers Bill, 2022 Tuarascáil maidir leis an nGrinnscrúdú Réamhreachtach ar Scéim Ghinearálta na mBeart Ionadaitheach le haghaidh um Chomhleasanna Tomhaltóirí an Bhille a Chosaint, 2022 and revocation of designation of a QE.
Finally, the national QE database should be connected to other Member States’ portals to support knowledge flow and transparency across the EU Single Market.

RReeccoommmmeennddaattiioonn The Committee recommends the provision of a national electronic database to track representative actions and provide monitoring and transparency.
OOnnee ssiinnggllee iinnffrraassttrruuccttuurree ffoorr aaddddrreessssiinngg mmaassss ddaammaaggee aaccttiioonnss The EJF recommend building one single infrastructure for the purpose of addressing mass damages actions for efficiency reasons.

The EJF support one single digital infrastructure for alternative dispute resolution by ombudsman entities or similar bodies, for redress orders by public authorities and for collective actions in court would offer huge synergies.
The EJF believe from a structural standpoint, remedies through ombudsman offices and interventions by supervisory authorities should be prioritised instead.

For this purpose, a mechanism that acts as gatekeeper for all the remedies available should be created as a single point of entry for consumers.

The EJF propose the establishment of a “superiority requirement” in national admission procedures that applies to all types of collective court actions, as has been done in Ontario.
The “Ontario formula” allows the state’s expensive judicial resources to be used in a collective action only if the use of such action is judged by the court in charge to be superior to all other reasonably available options that can award relief, including non-court dispute resolution bodies and regulatory redress.

The Netherlands The EJF submits many litigation funders and US law firms have already set up shop in the Netherlands which they expect to become the European hub for their business.
This means that commercial interest is driving expansion of EU collective actions and is likely to lead to exponential growth of collective actions.

The Netherlands has legislation, namely, the Resolution of Mass Damage in Collective Action Act, known as the WAMCA.

It has had great success at achieving successful class actions for consumers in that jurisdiction.

The Netherlands has changed its system.

It has an opt-out system for its residents only, so the Dutch people will have to opt-out.
If an Irish person wanted to get involved once this legislation comes through in that jurisdiction, the person will have to opt-in on that.

Opting out is legally questionable in a common law jurisdiction.

Netherlands has a civil law jurisdiction, not a common law one.

The Directive allows for opting in or opting out, but it favours opting in.
Page 42 of 50 Page 43 of 50 Page 43 of 50 REPORT ON THE PRE-LEGISLATIVE SCRUTINY OF THE GENERAL SCHEME OF THE REPRESENTATIVE ACTIONS FOR THE PROTECTION OF THE COLLECTIVE INTERESTS OF CONSUMERS BILL, 2022 Report on the Pre-Legislative Scrutiny of the General Scheme of the Representative Actions for the Protection of the Collective Interests of Consumers Bill, 2022 The Department of Justice Briefing note on Third-Party Funding The Committee requested a briefing note from the Department of Justice in relation to concerns highlighted in the Committee’s examination of this draft legislation.
• The Minister for Justice published an Implementation Plan on Civil Justice Efficiencies and Reform Measures in May 2022 setting out how the most significant reform to civil law in the history of the State will be achieved.

• The Plan implements the recommendations of the Report of the Review of the Administration of Civil Justice, also known as the Peter Kelly Report.

The report contained over 90 recommendations.


The Kelly review made two recommendations in relation to third party funding of civil actions in the chapter on legal costs.

• The first recommendation was that the weighing of policy considerations as to whether to allow certain third-party funding should be based on the more detailed examination of this subject being undertaken by the Law Reform Commission.
• The Law Reform Commission published an Issues Paper on “Contempt of Court and Other Offences and Torts involving the Administration of Justice” including Champerty and Maintenance in 2016.

A follow up paper is expected to be published.

The outcome of that consultation process will be considered as part of a policy review and proposals developed if required.

• The Implementation Plan set a target date of Q1 2024 for a policy review of third-party funding.
Once the LRC paper has been published, The Department of Justice will consider their policy on third-party funding in the context of any recommendations made.

• The second recommendation suggests that third party funding should be allowed in a limited number of circumstances in bankruptcy and related procedures.
• Implementing the second recommendation would require enacting primary legislation to dis-apply Champerty in these circumstances Page 44 of 50 Page 44 of 50 TUARASCÁIL MAIDIR LEIS AN NGRINNSCRÚDÚ RÉAMHREACHTACH AR SCÉIM GHINEARÁLTA NA MBEART IONA-DAITHEACH LE HAGHAIDH AN BHILLE UM CHOMHLEASANNA TOMHALTÓIRÍ A CHOSAINT, 2022 Report on the Pre-Legislative Scrutiny of the General Scheme of the Representative Actions for the Protection of the Collective Interests of Consumers Bill, 2022 Tuarascáil maidir leis an nGrinnscrúdú Réamhreachtach ar Scéim Ghinearálta na mBeart Ionadaitheach le haghaidh um Chomhleasanna Tomhaltóirí an Bhille a Chosaint, 2022 • This proposed legislation was included in the second package of Kelly legislation in the actions in the Implementation Plan alongside other measures related to the litigation costs.
This package of legalisation is scheduled and for enactment in 2024 in the plan.

IInntteerrnnaattiioonnaall AArrbbiittrraattiioonn The Minister for Justice is considering recommending to the Government that an amendment to the Arbitration Act 2010 be included in the Courts and Civil Law (Miscellaneous Provisions) Bill 2022, at a later stage.

This amendment would permit third-party funding in limited circumstances, specifically in commercial arbitration.
This update to the legislation will have a positive impact and benefit to the international perception of the Irish legal framework, while removing any doubts regarding the ability to enforce arbitral awards in the State.

RReeccoommmmeennddaattiioonn The Committee recommends that engagement occurs with the Minister for Justice and the Department of Justice to scrutinise and reform the matter of third-party litigation funding provisions in order to review and reform the laws on champerty and maintenance.
The Department of Justice Briefing note on Third-Party Funding The Committee requested a briefing note from the Department of Justice in relation to concerns highlighted in the Committee’s examination of this draft legislation.

• The Minister for Justice published an Implementation Plan on Civil Justice Efficiencies and Reform Measures in May 2022 setting out how the most significant reform to civil law in the history of the State will be achieved.
• The Plan implements the recommendations of the Report of the Review of the Administration of Civil Justice, also known as the Peter Kelly Report.

The report contained over 90 recommendations.

The Kelly review made two recommendations in relation to third party funding of civil actions in the chapter on legal costs.
• The first recommendation was that the weighing of policy considerations as to whether to allow certain third-party funding should be based on the more detailed examination of this subject being undertaken by the Law Reform Commission.

• The Law Reform Commission published an Issues Paper on “Contempt of Court and Other Offences and Torts involving the Administration of Justice” including Champerty and Maintenance in 2016.

A follow up paper is expected to be published.


The outcome of that consultation process will be considered as part of a policy review and proposals developed if required.

• The Implementation Plan set a target date of Q1 2024 for a policy review of third-party funding.

Once the LRC paper has been published, The Department of Justice will consider their policy on third-party funding in the context of any recommendations made.
• The second recommendation suggests that third party funding should be allowed in a limited number of circumstances in bankruptcy and related procedures.
• Implementing the second recommendation would require enacting primary legislation to dis-apply Champerty in these circumstances Page 44 of 50 Page 45 of 50 Page 45 of 50 REPORT ON THE PRE-LEGISLATIVE SCRUTINY OF THE GENERAL SCHEME OF THE REPRESENTATIVE ACTIONS FOR THE PROTECTION OF THE COLLECTIVE INTERESTS OF CONSUMERS BILL, 2022 Report on the Pre-Legislative Scrutiny of the General Scheme of the Representative Actions for the Protection of the Collective Interests of Consumers Bill, 2022 APPENDIX 1- Membership of the Joint Committee Deputies Maurice Quinlivan (SF) Cathoirleach Richard Bruton (FG) Francis Noel Duffy (GP) Joe Flaherty (FF) Paul Murphy (S-PBP) James O’Connor (FF) Louise O'Reilly (SF) Matt Shanahan (Ind) David Stanton (FG) Senators Garret Ahearn (FG) Ollie Crowe (FF) Róisín Garvey (GP) Paul Gavan (SF) Marie Sherlock (Lab) Notes: 1.
Deputies appointed to the Committee by order of the Dáil on 8 September 2020.

2.

Deputy Maurice Quinlivan was appointed as Chair on 8 September 2020.

3.

Senators appointed to the Committee by order of the Seanad on 25 September 2020.

4.

Deputy James ’O Connor replaced Deputy Niamh Smyth on 26 November 2020.
Page 46 of 50 Page 46 of 50 TUARASCÁIL MAIDIR LEIS AN NGRINNSCRÚDÚ RÉAMHREACHTACH AR SCÉIM GHINEARÁLTA NA MBEART IONA-DAITHEACH LE HAGHAIDH AN BHILLE UM CHOMHLEASANNA TOMHALTÓIRÍ A CHOSAINT, 2022 Report on the Pre-Legislative Scrutiny of the General Scheme of the Representative Actions for the Protection of the Collective Interests of Consumers Bill, 2022 Tuarascáil maidir leis an nGrinnscrúdú Réamhreachtach ar Scéim Ghinearálta na mBeart Ionadaitheach le haghaidh um Chomhleasanna Tomhaltóirí an Bhille a Chosaint, 2022 APPENDIX 1- Membership of the Joint Committee APPENDIX 2-Terms of Reference of The Joint Committee Maurice Quinlivan (SF) Cathoirleach Deputies Richard Bruton (FG) Francis Noel Duffy (GP) Joe Flaherty (FF) Paul Murphy (S-PBP) James O’Connor (FF) Louise O'Reilly (SF) Matt Shanahan (Ind) David Stanton (FG) Senators Garret Ahearn (FG) Ollie Crowe (FF) Róisín Garvey (GP) Paul Gavan (SF) Marie Sherlock (Lab) Notes: 1.
Deputies appointed to the Committee by order of the Dáil on 8 September 2020.

2.

Deputy Maurice Quinlivan was appointed as Chair on 8 September 2020.

3.

Senators appointed to the Committee by order of the Seanad on 25 September 2020.

4.
Deputy James ’O Connor replaced Deputy Niamh Smyth on 26 November 2020. a) Scope and Context of Activities of Committees (derived from Standing Orders – DSO 84, SSO 70) 1) The Joint Committee may only consider such matters, engage in such activities, exercise such powers and discharge such functions as are specifically authorised under its orders of reference and under Standing Orders; 2) Such matters, activities, powers and functions shall be relevant to, and shall arise only in the context of, the preparation of a report to the Dáil/and or Seanad; 3) The Joint Committee shall not consider any matter which is being considered, or of which notice has been given of a proposal to consider, by the Committee of Public Accounts pursuant to Standing Order 186 and/or the Comptroller and Auditor General (Amendment) Act 1993; 4) The Joint Committee shall not consider any matter which is being considered, or of which notice has been given of a proposal to consider, by the Joint Committee on Public Petitions in the exercise of its functions under Standing Order 111A; and The Joint Committee shall refrain from inquiring into in public session or publishing confidential information regarding any matter if so requested, for stated reasons given in writing, by— (i) a member of the Government or a Minister of State, or (ii) the principal officeholder of a body under the aegis of a Department or which is partly or wholly funded by the State or established or appointed by a member of the Government or by the Oireachtas: Provided that the Chairman may appeal any such request made to the Ceann Comhairle, whose decision shall be final.
5) It shall be an instruction to all Select Committees to which Bills are referred that they shall ensure that not more than two Select Committees shall meet to consider a Bill on any given day, unless the Dáil, after due notice given by the Chairman of the Select Committee, waives this instruction on motion made by the Taoiseach pursuant to Standing Order 28.

The Chairmen of Select Committees shall have responsibility for compliance with this instruction.
b) Functions of Departmental Committees (derived from Standing Orders – DSO 84A and SSO 70A) (1) The Select Committee shall consider and report to the Dáil on- (a) such aspects of the expenditure, administration and policy of a Government Department or Departments and associated public bodies as the Committee may select, and (b) European Union matters within the remit of the relevant Department or Departments.
(2) The Select Committee may be joined with a Select Committee appointed by Seanad Éireann for the purposes of the functions set out in this Standing Order, other than at paragraph (3), and to report thereon to both Houses of the Oireachtas.
Page 46 of 50 Page 47 of 50 Page 47 of 50 REPORT ON THE PRE-LEGISLATIVE SCRUTINY OF THE GENERAL SCHEME OF THE REPRESENTATIVE ACTIONS FOR THE PROTECTION OF THE COLLECTIVE INTERESTS OF CONSUMERS BILL, 2022 Report on the Pre-Legislative Scrutiny of the General Scheme of the Representative Actions for the Protection of the Collective Interests of Consumers Bill, 2022 (3) Without prejudice to the generality of paragraph (1), the Select Committee shall consider, in respect of the relevant Department or Departments, such— (a) (b) (c) (d) (e) Bills, proposals contained in any motion, including any motion within the meaning of Standing Order 187 Estimates for Public Services, and other matters as shall be referred to the Select Committee by the Dáil, and Annual Output Statements including performance, efficiency, and effectiveness in the use of public moneys, and (f) such Value for Money and Policy Reviews as the Select Committee may select.
(4) Without prejudice to the generality of paragraph (1), the Joint Committee may consider the following matters in respect of the relevant Department or Departments and associated public bodies: (a) matters of policy and governance for which the Minister is officially responsible, (b) (c) (d) (e) (f) (g) (h) (i) (j) public affairs administered by The Department, policy issues arising from Value for Money and Policy Reviews conducted or commissioned by the Department, Government policy and governance in respect of bodies under the aegis of the Department, policy and governance issues concerning bodies which are partly or wholly funded by the State or which are established or appointed by a member of the Government or the Oireachtas, the general scheme or draft heads of any Bill any post-enactment report laid before either House or both Houses by a member of the Government or Minister of State on any Bill enacted by the Houses of the Oireachtas, statutory instruments, including those laid or laid in draft before either House or both Houses and those made under the European Communities Acts 1972 to 2009, strategy statements laid before either or both Houses of the Oireachtas pursuant to the Public Service Management Act 1997, annual reports or annual reports and accounts, required by law, and laid before either or both Houses of the Oireachtas, of the Department or bodies referred to in subparagraphs (d) and (e) and the overall performance and operational results, statements of strategy and corporate plans of such bodies, and (k) such other matters as may be referred to it by the Dáil from time to time.
Without prejudice to the generality of paragraph (1), the Joint Committee shall consider, (5) in respect of the relevant Department or Departments— (a) EU draft legislative acts standing referred to the Select Committee under Standing Order 114, including the compliance of such acts with the principle of subsidiarity, Page 48 of 50 Page 48 of 50 TUARASCÁIL MAIDIR LEIS AN NGRINNSCRÚDÚ RÉAMHREACHTACH AR SCÉIM GHINEARÁLTA NA MBEART IONA-DAITHEACH LE HAGHAIDH AN BHILLE UM CHOMHLEASANNA TOMHALTÓIRÍ A CHOSAINT, 2022 Report on the Pre-Legislative Scrutiny of the General Scheme of the Representative Actions for the Protection of the Collective Interests of Consumers Bill, 2022 Tuarascáil maidir leis an nGrinnscrúdú Réamhreachtach ar Scéim Ghinearálta na mBeart Ionadaitheach le haghaidh um Chomhleasanna Tomhaltóirí an Bhille a Chosaint, 2022 (b) (c) other proposals for EU legislation and related policy issues, including programmes and guidelines prepared by the European Commission as a basis of possible legislative action, non-legislative documents published by any EU institution in relation to EU policy matters, and (d) matters listed for consideration on the agenda for meetings of the relevant EU Council of Ministers and the outcome of such meetings.
(6) Where the Select Committee has been joined with a Select Committee appointed by Seanad Éireann, the Chairman of the Dáil Select Committee shall also be the Chairman of the Joint Committee.
(7) The following may attend meetings of the Select or Joint Committee, for the purposes of the functions set out in paragraph (5) and may take part in proceedings without having a right to vote or to move motions and amendments: (a) matters of policy and governance for which the Minister is officially responsible, (a) members of the European Parliament elected from constituencies in Ireland, including Northern Ireland, (b) members of the Irish delegation to the Parliamentary Assembly of the Council of Europe, and (c) at the invitation of the Committee, other members of the European Parliament.
(8) The Joint Committee may, in respect of any Ombudsman charged with oversight of public services within the policy remit of the relevant Department or Departments, consider— (a) (b) such motions relating to the appointment of an Ombudsman as may be referred to the Committee, and such Ombudsman reports laid before either or both Houses of the Oireachtas as the Committee may select: Provided that the provisions of Standing Order 111F apply where the Select Committee has not considered the Ombudsman report, or a portion or portions thereof, within two months (excluding Christmas, Easter or summer recess periods) of the report being laid before either or both Houses of the Oireachtas.
(a) (b) (c) (d) (e) (b) (c) (3) Without prejudice to the generality of paragraph (1), the Select Committee shall consider, in respect of the relevant Department or Departments, such— Bills, Order 187 proposals contained in any motion, including any motion within the meaning of Standing Estimates for Public Services, and other matters as shall be referred to the Select Committee by the Dáil, and Annual Output Statements including performance, efficiency, and effectiveness in the use of public moneys, and (f) such Value for Money and Policy Reviews as the Select Committee may select.
(4) Without prejudice to the generality of paragraph (1), the Joint Committee may consider the following matters in respect of the relevant Department or Departments and associated public bodies: public affairs administered by The Department, policy issues arising from Value for Money and Policy Reviews conducted or commissioned by the Department, (d) Government policy and governance in respect of bodies under the aegis of the Department, Oireachtas, (e) policy and governance issues concerning bodies which are partly or wholly funded by the State or which are established or appointed by a member of the Government or the (f) the general scheme or draft heads of any Bill (g) any post-enactment report laid before either House or both Houses by a member of the Government or Minister of State on any Bill enacted by the Houses of the Oireachtas, (h) statutory instruments, including those laid or laid in draft before either House or both Houses and those made under the European Communities Acts 1972 to 2009, (i) strategy statements laid before either or both Houses of the Oireachtas pursuant to the Public Service Management Act 1997, (j) annual reports or annual reports and accounts, required by law, and laid before either or both Houses of the Oireachtas, of the Department or bodies referred to in subparagraphs (d) and (e) and the overall performance and operational results, statements of strategy and corporate plans of such bodies, and (k) such other matters as may be referred to it by the Dáil from time to time.
(5) Without prejudice to the generality of paragraph (1), the Joint Committee shall consider, in respect of the relevant Department or Departments— (a) EU draft legislative acts standing referred to the Select Committee under Standing Order 114, including the compliance of such acts with the principle of subsidiarity, Page 48 of 50 Page 49 of 50 Page 49 of 50 REPORT ON THE PRE-LEGISLATIVE SCRUTINY OF THE GENERAL SCHEME OF THE REPRESENTATIVE ACTIONS FOR THE PROTECTION OF THE COLLECTIVE INTERESTS OF CONSUMERS BILL, 2022 Report on the Pre-Legislative Scrutiny of the General Scheme of the Representative Actions for the Protection of the Collective Interests of Consumers Bill, 2022 APPENDIX 3 - Reference Links • PLS Meetings - 29 June 2022 and 14 September 2022 Meeting 1 – 29 June Transcript - Video • Opening Statement Department of Enterprise, Trade and Employment Meeting 2 -14 September Transcript - Video • Opening Statements Competition and Consumer Protection Commission The Law Society Consumers’ Association of Ireland • Department of Enterprise, Trade and Employment Public Consultation • The General Scheme • 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 Page 50 of 50 Page 50 of 50 TUARASCÁIL MAIDIR LEIS AN NGRINNSCRÚDÚ RÉAMHREACHTACH AR SCÉIM GHINEARÁLTA NA MBEART IONA-DAITHEACH LE HAGHAIDH AN BHILLE UM CHOMHLEASANNA TOMHALTÓIRÍ A CHOSAINT, 2022 Houses of the Oireachtas Leinster House Kildare Street Dublin 2 D02 XR20 www.oireachtas.ie Tel: +353 (0)1 6183000 Twitter: @OireachtasNews Connect with us Download our App