Following the commencement of the Representative Actions for the Protection of the Collective Interests of Consumers Act 2023 (the "Act") at the end of April 2024 (discussed in our previous update here), the Irish Council for Civil Liberties ("ICCL") has been designated by the Minister for Enterprise, Trade and Employment (the "Minister") as a qualified entity ("QE"). This is the first such designation in Ireland.
Representative actions under the Act can only be brought by a QE acting on behalf of consumers impacted by infringements of prescribed consumer legislation. For an organisation to be able to apply to the Minister to be designated as a QE, an organisation is required to meet the criteria set out in section 8(1) of the Act, namely that it:
- Be a legal person with 12 months of public consumer protection activity prior to the application;
- Demonstrate, as its main purpose, a legitimate interest in protecting consumer interests under certain legislation detailed in the Schedule to the Act;
- Be non-profit-making and solvent;
- Be independent and have procedures in place to ensure that it is not influenced by, and to prevent conflicts of interest with, traders or other persons with an economic interest in bringing a representative action (including in the event of funding by third parties); and
- Make publicly available certain information, including confirmation of their compliance with each of the above points, together with its source of funding, its organisational, management and membership structure, any statutory purpose it may have and its activities.
The Minister is required, under section 16 of the Act, to establish and maintain a register of QEs. The register, which can be found on the Department of Enterprise, Trade and Employment website here, documents that ICCL has satisfied the section 8(1) requirements and has been designated as a QE with effect from 5 June 2024.
This important milestone now means that the procedural mechanism is in place to allow domestic consumer representative actions to be brought in Ireland. It may also be that ICCL will be designated as a cross-border QE (ie a QE able to take cross-border representative actions elsewhere in the EU) but, as yet, it has not been listed as such in the European Commission's list of designated cross-border QEs. Notably, that list records cross-border QEs have been designated in other EU Member States. Those QEs would also be able to bring a cross-border representative action in Ireland.
Despite these developments with QE designations, the funding concerns that we have outlined in previous updates (including most recently here) remain, including in particular the issue of how a non-profit QE will be able to pursue a representative action in circumstances where there is, currently at least, a prohibition on third-party litigation funding in Ireland.
ICCL, which describes itself as Ireland's leading human rights organisation aiming to defend and promote civil liberties and human rights, details in its most recent Annual Report (for 2022) how, as a non-profit organisation, it is funded through various sources. Those sources include specific project grants, charitable trusts and foundations, and gifts and donations from individual supporters. It remains to be seen whether such sources will be available to fund representative actions under the Act.
Separately, given that the number of QEs that may be designated under the Act is not restricted, other organisations may follow as being designated as QEs. We will continue to monitor for any further designations, as well as for any other developments in this area.
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