Developments in PIL EU Legislation Normative texts

The Directive on Representative Actions for the Protection of the Collective Interests of Consumers Published

Directive (EU) 2020/1828 of 25 November 2020 on representative actions for the protection of the collective interests of consumers and repealing Directive 2009/22/EC was published on 4 December 2020 (OJ L 409/1).

It consists of 79 recitals, 26 provisions (some of them actually looking as recitals, and vice-versa), and two Annexes, the second being a correlation table of provisions – to my mind, a good lawmaking practice. It will enter into force on the twentieth day following that of its publication in the Official Journal of the European Union; transposition shall be ready by 25 December 2022; the national measures will apply from 25 June 2023.

The Key Features of the Directive in a Nutshell

The Directive is based  on Article 114 TFEU (see nevertheless Recital 76, arguing that the intervention of the EU is necessary due to the relevance of the cross-border element).

Having regard to its overarching objective, the Directive joins the group of measures aiming simultaneously at the protection of the consumer, the promotion of fairer competition and the creation of a level playing field for traders operating in the internal market (in other words, this piece of legislation has not been conceived only for the sake of consumers; therefore, it is here submitted that it should not be interpreted only with them in mind).

The Directive  takes up the failures of precedent legal acts in relation to the enforcement of consumer law, particularly Directive 2009/22/EC on injunctions for the protection of consumers’ interests. As in other fields of EU law, it clearly endorses private enforcement.

According to the Directive, a consumer is any natural person who acts for purposes outside that person’s trade, business, craft or profession, independently of how she is referred to (data subject, traveler, retail investor, etc) in the legal act allegedly infringed.

The Directive covers infringements of the provisions of Union law referred to in its Annex I, to the extent that they protect the interests of consumers, and provided the natural person involved acts as such.

For those willing to get the whole picture as to the scope of the Directive it is worth noticing that it does not substitute the enforcement mechanism contained in the EU legal acts listed in Annex I (by the way: keep in mind that Annex is subject to be amended each time that a new Union act relevant to the protection of the collective interests of consumers is adopted). In addition, Member States are able to retain or introduce national legislation that corresponds to provisions of this Directive in relation to disputes that fall outside the scope of Annex I. My understanding is that this possibility relates only to subject matters, and not to the subjective scope of the Directive.

The impact of the Directive on national systems will depend on the Member State concerned. National procedural mechanisms for the protection of collective or individual consumer interests – where they exist – do not need to be replaced. It is for the Member States to decide whether the procedural mechanisms for representative actions required by the Directive are part of an existing procedural mechanism for collective injunctive measures or redress measures, or a distinct procedural mechanism.

What matters is that at least one national procedural mechanism for representative actions complies with the Directive in every Member State, and, as a consequence, at least one effective and efficient procedural mechanism for representative actions, for injunctive measures and for redress measures, is available to consumers in all Member States.

In terms of contents, the Directive does not address every aspect of the proceedings. Already whether these should be judicial or administrative, or both, is to be decided by the Member States considering the area of law or the economic sector at stake.

The provisions eventually adopted focus on legal standing (and its mutual recognition), remedies (injunctive relief, redress measures), funding, settlements, allocation of costs, information about representative actions, effects of final decisions, limitation periods, disclosure of evidence, and penalties.

It is for the Member States to lay down the rules complementing those of the Directive under the principle procedural autonomy, subject to the requirements of effectiveness and non-discrimination.

Aspects of the Directive of Interest for PIL

The Directive does not intend to affect the application of rules of private international law regarding jurisdiction, the recognition and enforcement of judgments or applicable law, nor establish such rules (in other words, the well-known shortcomings of the existing PIL instruments are not remedied).

This intention has not prevented the lawmaker from shaping two cross-border categories: ‘cross-border infringements’, and ‘cross-border representative actions’.

The former covers ‘in particular’ the case of consumers affected by an infringement who live in Member States other than the Member State in which the infringing trader is established; what else is included is unclear. The latter designates the situation of a qualified entity bringing a representative action in a Member State other than that in which it is designated; conversely, if a qualified entity brings a representative action in the Member State in which it is designated, that representative action will qualify as a domestic representative action, even if it is brought against a trader domiciled in another Member State and even if consumers from several Member States are represented within that representative action. I would argue here that those categories have no meaning beyond the Directive itself; in other words, they should be accorded no significance in terms of application of PIL instruments.

Recital 22, according to which ‘It should be noted that Regulation (EU) No 1215/2012 does not cover the competence of administrative authorities or the recognition or enforcement of decisions by such authorities’, deserves a similar assessment. In my view, whether a representative action filed by an administrative authority falls under the scope of the Brussels I Regulation or not still depends on the autonomous characterization of the dispute as ‘civil and commercial’.

In addition to the clarification regarding PIL instruments, the following issues of interest for cross-border disputes are addressed in the Directive (not necessarily in the operational part).

Useful information for the courts – When bringing a representative action, a qualified entity should provide sufficient information on the consumers concerned by the representative action to the court or the administrative authority, thus allowing the court or administrative authority to determine whether it has jurisdiction and to determine the applicable law.

Useful information for the consumers – Member States should be able to set up national electronic databases that are publicly accessible through websites providing information on the qualified entities designated for the purpose of bringing domestic representative actions and cross-border representative actions, as well as general information on ongoing and concluded representative actions.

Legal standing criteria – For the purposes of cross-border representative actions, qualified entities should be subject to the same criteria for designation across the Union. Examples are listed – non exhaustively – under recital 25. Moreover, qualified entities that have been designated on an ad hoc basis are not allowed to bring cross-border representative actions.

Mutual recognition – Member States should ensure that cross-border representative actions can be brought before their courts or administrative authorities by qualified entities that have been designated for the purpose of such representative actions in another Member State. The identity of qualified entities enabled to sue abroad will be communicated to the Commission, who will compile a list and make it publicly available. Inclusion on the list serves as proof of the legal standing of the qualified entity bringing the representative action.

Opt-in – In order to ensure the sound administration of justice and to avoid irreconcilable judgments, where the consumers affected by an infringement do not habitually reside in the Member State of the court or administrative authority before which the representative action is brought, an opt-out mechanism is excluded regarding representative actions for redress measures. In other words, consumers have to explicitly express their wish to be represented in that representative action in order to be bound by the outcome of the representative action.

Cooperation and the exchange of information between qualified entities from different Member States is encouraged, in order to increase the use of representative actions with cross-border implications.

Senior research fellow MPI Luxembourg (on leave) Legal secretary at the CJEU Full Professor PIL, University of La Laguna (Spain)

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