Globalisation and digitalisation have increased the risk of a large number of consumers being harmed by the same unlawful practice. Infringements of Union law can cause consumer detriment. Without effective means to bring unlawful practices to an end and to obtain redress for consumers, consumer confidence in the internal market is reduced.
(2)
The lack of effective means for the enforcement of Union law protecting consumers could also result in the distortion of fair competition between infringing and compliant traders that operate domestically or across borders. Such distortions can hamper the smooth functioning of the internal market.
(3)
According to Article 26(2) of the Treaty on the Functioning of the European Union (TFEU), the internal market is to comprise an area without internal frontiers in which the free movement of goods and services is ensured. The internal market should provide consumers with added value in the form of better quality, greater variety, reasonable prices and high safety standards with regard to goods and services, thereby promoting a high level of consumer protection.
(4)
Article 169(1) and point (a) of Article 169(2) TFEU provide that the Union is to contribute to the attainment of a high level of consumer protection through measures adopted pursuant to Article 114 TFEU. Article 38 of the Charter of Fundamental Rights of the European Union (the ‘Charter’) provides that Union policies are to ensure a high level of consumer protection.
(5)
Directive 2009/22/EC of the European Parliament and of the Council (4) enabled qualified entities to bring representative actions that are primarily aimed at the cessation or prohibition of infringements of Union law that are harmful to the collective interests of consumers. However, that Directive did not sufficiently address the challenges relating to the enforcement of consumer law. To improve the deterrence of unlawful practices and to reduce consumer detriment in an increasingly globalised and digitalised marketplace, it is necessary to strengthen procedural mechanisms for the protection of the collective interests of consumers to cover injunctive measures as well as redress measures. Given the numerous changes required, it is appropriate to repeal Directive 2009/22/EC and replace it with this Directive.
(6)
Procedural mechanisms for representative actions, both for injunctive measures and for redress measures, vary across the Union and offer different levels of protection for consumers. In addition, some Member States do not at present have any procedural mechanisms for collective actions for redress measures in place. That situation diminishes consumers’ and businesses’ confidence in the internal market and their ability to operate in the internal market. It distorts competition and hampers the effective enforcement of Union law in the field of consumer protection.
(7)
This Directive therefore aims to ensure that at Union and national level 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. Having at least one such procedural mechanism for representative actions available would boost consumer confidence, empower consumers to exercise their rights, contribute to fairer competition and create a level playing field for traders operating in the internal market.
(8)
This Directive aims to contribute to the functioning of the internal market and the achievement of a high level of consumer protection by enabling qualified entities that represent the collective interests of consumers to bring representative actions for both injunctive measures and redress measures against traders that infringe provisions of Union law. Those qualified entities should be able to request that such infringing conduct be ceased or prohibited and to seek redress, as appropriate and available under Union or national law, such as compensation, repair or price reduction.
(9)
A representative action should offer an effective and efficient way of protecting the collective interests of consumers. It should allow qualified entities to act with the aim of ensuring that traders comply with relevant provisions of Union law and to overcome the obstacles faced by consumers in individual actions, such as those relating to uncertainty about their rights and about which procedural mechanisms are available, psychological reluctance to take action and the negative balance of the expected costs relative to the benefits of the individual action.
(10)
It is important to ensure the necessary balance between improving consumers’ access to justice and providing appropriate safeguards for traders to avoid abusive litigation that would unjustifiably hinder the ability of businesses to operate in the internal market. To prevent the misuse of representative actions, the awarding of punitive damages should be avoided and rules on certain procedural aspects, such as the designation and funding of qualified entities, should be laid down.
(11)
This Directive should not replace existing national procedural mechanisms for the protection of collective or individual consumer interests. Taking into account their legal traditions, it should leave it to the discretion of the Member States whether to design the procedural mechanism for representative actions required by this Directive as part of an existing or as part of a new procedural mechanism for collective injunctive measures or redress measures, or as a distinct procedural mechanism, provided that at least one national procedural mechanism for representative actions complies with this Directive. For instance, this Directive should not prevent Member States from adopting laws on actions seeking declaratory decisions by a court or administrative authority even though it does not provide for rules on such actions. If there were procedural mechanisms in place at national level in addition to the procedural mechanism required by this Directive, the qualified entity should be able to choose which procedural mechanism to use.
(12)
In line with the principle of procedural autonomy, this Directive should not contain provisions on every aspect of proceedings in representative actions. Accordingly, it is for the Member States to lay down rules, for instance, on admissibility, evidence or the means of appeal, applicable to representative actions. For example, it should be for Member States to decide on the required degree of similarity of individual claims or the minimum number of consumers concerned by a representative action for redress measures in order for the case to be admitted to be heard as a representative action. Such national rules should not hamper the effective functioning of the procedural mechanism for representative actions required by this Directive. In accordance with the principle of non-discrimination, the admissibility requirements applicable to specific cross-border representative actions should not differ from those applied to specific domestic representative actions. A decision to declare a representative action inadmissible should not affect the rights of the consumers concerned by the action.
(13)
The scope of this Directive should reflect recent developments in the field of consumer protection. Since consumers now operate in a wider and increasingly digitalised marketplace, achieving a high level of consumer protection requires that areas such as data protection, financial services, travel and tourism, energy, and telecommunications be covered by the Directive, in addition to general consumer law. In particular, as there is increased consumer demand for financial and investment services, it is important to improve the enforcement of consumer law in those areas. The consumer market has also evolved in the area of digital services, and there is an increased need for more efficient enforcement of consumer law, including as regards data protection.
(14)
This Directive should cover infringements of the provisions of Union law referred to in Annex I to the extent that those provisions protect the interests of consumers, regardless of whether those consumers are referred to as consumers, travellers, users, customers, retail investors, retail clients, data subjects or something else. However, this Directive should only protect the interests of natural persons who have been harmed or may be harmed by those infringements if those persons are consumers under this Directive. Infringements that harm natural persons qualifying as traders under this Directive should not be covered by it.
(15)
This Directive should be without prejudice to the legal acts listed in Annex I and therefore it should not change or extend the definitions laid down in those legal acts or replace any enforcement mechanism that those legal acts might contain. For example, the enforcement mechanisms provided for in or based on Regulation (EU) 2016/679 of the European Parliament and of the Council (5) could, where applicable, still be used for the protection of the collective interests of consumers.
(16)
For the avoidance of doubt, the scope of this Directive should be set out as precisely as possible in Annex I. Where the legal acts listed in Annex I contain provisions that do not relate to consumer protection, Annex I should refer to the specific provisions that protect consumers’ interests. However, such references are not always feasible due to the structure of certain legal acts, in particular in the area of financial services, including the area of investment services.
(17)
To ensure an adequate response to infringements of Union law, the form and scale of which quickly evolve, each time that a new Union act that is relevant to the protection of the collective interests of consumers is adopted, the legislator should consider whether Annex I should be amended in order to place the new Union act under the scope of this Directive.
(18)
Member States should remain competent to make provisions of this Directive applicable to areas additional to those falling within its scope. For example, Member States should be 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.
(19)
Since both judicial proceedings and administrative proceedings could effectively and efficiently serve to protect the collective interests of consumers, it is left to the discretion of the Member States whether a representative action can be brought in judicial proceedings, administrative proceedings, or both, depending on the relevant area of law or the relevant economic sector. This should be without prejudice to the right to an effective remedy under Article 47 of the Charter, whereby Member States are to ensure that consumers and traders have the right to an effective remedy before a court or tribunal, against any administrative decision taken pursuant to national measures transposing this Directive. This should include the possibility for a party in an action to obtain a decision ordering the suspension of the enforcement of the disputed decision, in accordance with national law.
(20)
Building on Directive 2009/22/EC, this Directive should cover both domestic and cross-border infringements, in particular where consumers affected by an infringement live in Member States other than the Member State in which the infringing trader is established. It should also cover infringements that have ceased before the representative action is brought or concluded, since it might still be necessary to prevent the repetition of the practice by prohibiting it, to establish that a given practice constituted an infringement or to facilitate consumer redress.
(21)
This Directive should not affect the application of rules of private international law regarding jurisdiction, the recognition and enforcement of judgments or applicable law, nor should it establish such rules. Existing instruments of Union law should apply to the procedural mechanism for representative actions required by this Directive. In particular, Regulation (EC) No 864/2007 (6), Regulation (EC) No 593/2008 (7) and Regulation (EU) No 1215/2012 (8) of the European Parliament and of the Council should apply to the procedural mechanism for representative actions required by this Directive.
(22)
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. Such questions should be a matter for national law.
(23)
Where appropriate, it could be possible, in accordance with rules of private international law, for a qualified entity to bring a representative action in the Member State where it has been designated as well as in another Member State. Building on Directive 2009/22/EC, this Directive should make a distinction between those two types of representative actions. Where a qualified entity brings a representative action in a Member State other than that in which it is designated, that representative action should be considered a cross-border representative action. Where a qualified entity brings a representative action in the Member State in which it is designated, that representative action should be considered a domestic representative action, even if that representative action is brought against a trader domiciled in another Member State and even if consumers from several Member States are represented within that representative action. The Member State in which the representative action is brought should be the deciding criterion for determining the type of representative action that is brought. For this reason, it should not be possible for a domestic representative action to become a cross-border representative action during the course of the proceedings, or vice versa.
(24)
Consumer organisations in particular should play an active role in ensuring that relevant provisions of Union law are complied with. They should all be considered well placed to apply for the status of qualified entity in accordance with national law. Depending on national legal traditions, public bodies could also play an active role in ensuring that relevant provisions of Union law are complied with by bringing representative actions as provided for in this Directive.
(25)
For the purposes of cross-border representative actions, qualified entities should be subject to the same criteria for designation across the Union. In particular, they should be legal persons that are properly constituted in accordance with national law of the Member State of designation, have a certain degree of permanence and level of public activity, have a non-profit-making character and have a legitimate interest, given their statutory purpose, in protecting the interests of consumers as provided for by Union law. Qualified entities should not be the subject of insolvency proceedings or be declared to be insolvent. They should be independent and should not be influenced by persons other than consumers who have an economic interest in the bringing of a representative action, in particular by traders or hedge funds, including in the event of funding by third parties. Qualified entities should have established procedures to prevent such influence as well as to prevent conflicts of interest between themselves, their funding providers and the interests of consumers. They should make publicly available, in plain and intelligible language, by any appropriate means, in particular on their websites, information demonstrating that they comply with the criteria for designation as a qualified entity and general information about the sources of their funding in general, their organisational, management and membership structure, statutory purpose and activities.
(26)
Member States should be able to establish the criteria for designation of qualified entities for the purpose of domestic representative actions freely in accordance with national law. However, Member States should also be able to apply the criteria for designation laid down in this Directive for designating qualified entities for the purposes of cross-border representative actions in respect of qualified entities designated only for the purpose of domestic representative actions.
(27)
Any criteria that are applied for the designation of qualified entities in domestic or cross-border representative actions should not hamper the effective functioning of representative actions as provided for in this Directive.
(28)
Member States should be able to designate qualified entities in advance for the purpose of bringing representative actions. This Directive should not encourage Member States to introduce the possibility of designating qualified entities on an ad hoc basis. However, for the purpose of domestic representative actions, Member States should also or alternatively be able to designate qualified entities on an ad hoc basis for a specific domestic representative action. It should be possible for such designation to be made by the court or administrative authority seised, including by way of acceptance, where applicable. However, for the purposes of cross-border representative actions, common safeguards are needed. Therefore, qualified entities that have been designated on an ad hoc basis should not be allowed to bring cross-border representative actions.
(29)
It should be for the designating Member State to ensure that an entity complies with the criteria for designation as a qualified entity for the purpose of cross-border representative actions, to assess whether the qualified entity continues to comply with the criteria for designation and, if necessary, to revoke the designation of that qualified entity. Member States should assess whether qualified entities continue to comply with the criteria for designation, at least every five years.
(30)
If concerns arise as to whether a qualified entity complies with the criteria for designation, the Member State that designated that qualified entity should investigate the concerns and, if appropriate, revoke the designation of that qualified entity. Member States should designate national contact points for the purpose of transmitting and receiving requests for investigations.
(31)
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. Furthermore, qualified entities from different Member States should be able to join forces within a single representative action in a single forum, subject to the relevant rules on jurisdiction. This should be without prejudice to the right of the court or administrative authority seised to examine whether the representative action is suitable to be heard as a single representative action.
(32)
It should be ensured that there is mutual recognition of the legal standing of qualified entities designated for the purpose of cross-border representative actions. The identity of those qualified entities should be communicated to the Commission, and the Commission should compile a list of those qualified entities and make that list publicly available. Inclusion on the list should serve as proof of the legal standing of the qualified entity bringing the representative action. This should be without prejudice to the right of the court or administrative authority to examine whether the statutory purpose of the qualified entity justifies its taking action in a specific case.
(33)
Injunctive measures aim to protect the collective interests of consumers irrespective of whether any actual loss or damage is suffered by individual consumers. Injunctive measures can require traders to take specific action, such as providing consumers with the information that was previously omitted in violation of a legal obligation. A decision on an injunctive measure should not depend on whether the practice was committed intentionally or as a result of negligence.
(34)
When bringing a representative action, the qualified entity should provide sufficient information on the consumers concerned by the representative action to the court or the administrative authority. That information should allow the court or administrative authority to determine whether it has jurisdiction and to determine the applicable law. In a case related to tort, this obligation would involve informing the court or administrative authority of the place where the harmful event affecting the consumers occurred or may occur. The level of detail of the information required could differ depending on the measure that the qualified entity is seeking and whether an opt-in or an opt-out mechanism applies. Furthermore, when bringing a representative action for injunctive measures, the possible suspension or interruption of limitation periods applicable to subsequent claims for redress would require the qualified entity to provide sufficient information about the group of consumers concerned by the representative action.
(35)
Member States should ensure that qualified entities are able to seek injunctive measures and redress measures. In order to ensure the procedural effectiveness of representative actions, Member States should be able to decide that qualified entities may seek injunctive measures and redress measures within a single representative action or within separate representative actions. If sought within a single representative action, qualified entities should be able to seek all relevant measures at the time the representative action is brought or to first seek relevant injunctive measures and to subsequently seek redress measures, if appropriate.
(36)
A qualified entity that brings a representative action under this Directive should seek the relevant measures, including redress measures, in the interests of and on behalf of the consumers affected by the infringement. The qualified entity should have the procedural rights and obligations of the claimant party in the proceedings. Member States should be free to provide individual consumers concerned by the representative action with certain rights within the representative action, but those individual consumers should not be claimant parties in the proceedings. In no case should individual consumers be able to interfere with the procedural decisions taken by the qualified entities, to individually request evidence within the proceedings or to individually appeal the procedural decisions of the court or administrative authority before which the representative action is brought. In addition, individual consumers should not have procedural obligations within the representative action and should not bear the costs of the proceedings, except in exceptional circumstances.
(37)
However, the consumers concerned by a representative action should be entitled to benefit from that representative action. In representative actions for redress measures, the benefits should come in the form of remedies, such as compensation, repair, replacement, price reduction, contract termination or reimbursement of the price paid. In representative actions for injunctive measures, the benefit for the consumers concerned would be the cessation or prohibition of a practice that constitutes an infringement.
(38)
In representative actions for redress measures, the unsuccessful party should pay the costs of the proceedings incurred by the successful party, in accordance with the conditions and exceptions provided for in national law. However, the court or administrative authority should not order the unsuccessful party to pay the costs to the extent that those costs were incurred unnecessarily. Individual consumers concerned by a representative action should not pay the costs of the proceedings. However, in exceptional circumstances, it should be possible to order individual consumers concerned by a representative action for redress measures to pay the costs of the proceedings that were incurred as a result of those individual consumers’ intentional or negligent conduct, for example, the prolonging the proceedings because of unlawful conduct. The costs of the proceedings should include, for example, any costs resulting from the fact that either party was represented by a lawyer or another legal professional, or any costs resulting from the service or translation of documents.
(39)
In order to avoid abusive litigation, Member States should adopt new rules or apply existing rules under national law so that the court or administrative authority can decide to dismiss manifestly unfounded cases as soon as the court or administrative authority has received the necessary information in order to justify the decision. Member States should not be obliged to introduce special rules that apply to representative actions and should be able to apply general procedural rules, where those rules meet the objective of avoiding abusive litigation.
(40)
Injunctive measures should include definitive and provisional measures. Provisional measures could cover interim measures, precautionary and preventive measures to bring an ongoing practice to an end or to prohibit a practice in the event that the practice has not been carried out but where there is a risk that it would cause serious or irreversible harm to consumers. Injunctive measures could also include measures that declare that a given practice constitutes an infringement, in cases where that practice ceased before the representative actions had been brought but where there is still a need to establish that the practice constituted an infringement, for example, in order to facilitate follow-up actions for redress measures. Moreover, injunctive measures could take the form of an obligation on the part of the infringing trader to publish the decision taken by the court or administrative authority on the measure in full or in part, in such form as considered appropriate, or to publish a corrective statement.
(41)
Building on Directive 2009/22/EC, Member States should be able to require that a qualified entity that intends to bring a representative action for injunctive measures undertake a prior consultation in order to give the trader concerned an opportunity to bring the infringement that would be the subject of the representative action to an end. Member States should be able to require that that prior consultation takes place jointly with an independent public body that they designate. Where Member States have established that there should be prior consultation, a deadline of two weeks after the request for consultation is received should be set, after which, if the infringement has not ceased, the applicant should be entitled to immediately bring a representative action for an injunctive measure before the competent court or administrative authority. Such requirements could also apply to representative actions for redress measures, in accordance with national law.
(42)
This Directive should provide for a procedural mechanism which does not affect the rules establishing substantive rights of consumers to contractual and non-contractual remedies in cases where their interests have been harmed by an infringement, such as the right to compensation for damage, contract termination, reimbursement, replacement, repair or price reduction as appropriate and as available under Union or national law. It should only be possible to bring a representative action for redress measures under this Directive where Union or national law provides for such substantive rights. This Directive should not make it possible to impose punitive damages on the infringing trader, in accordance with national law.
(43)
Consumers concerned by a representative action for redress measures should have adequate opportunities after the representative action has been brought to express whether or not they wish to be represented by the qualified entity in that specific representative action and whether or not they wish to benefit from the relevant outcomes of that representative action. To best respond to their legal traditions, Member States should provide for an opt-in mechanism, or an opt-out mechanism, or a combination of the two. In an opt-in mechanism, consumers should be required to explicitly express their wish to be represented by the qualified entity in the representative action for redress measures. In an opt-out mechanism, consumers should be required to explicitly express their wish not to be represented by the qualified entity in the representative action for redress measures. Member States should be able to decide at which stage of the proceedings individual consumers are able to exercise their right to opt in to or out of a representative action.
(44)
Member States that provide for an opt-in mechanism should be able to require that some consumers opt in to the representative action for redress measures before the representative action is brought, provided that other consumers also have an opportunity to opt in after the representative action has been brought.
(45)
However, in order to ensure the sound administration of justice and to avoid irreconcilable judgments, an opt-in mechanism should be required regarding representative actions for redress measures where the consumers affected by the infringement do not habitually reside in the Member State of the court or administrative authority before which the representative action is brought. In such situations, consumers should 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.
(46)
Where consumers explicitly or tacitly express their wish to be represented by a qualified entity within a representative action for redress measures, regardless of whether that representative action is brought in the context of an opt-in or an opt-out mechanism, they should no longer be able to be represented in other representative actions with the same cause of action against the same trader or to bring individual actions with the same cause of action against the same trader. However, this should not apply if a consumer, having explicitly or tacitly expressed his or her wish to be represented within a representative action for redress measures, later opts out from that representative action in accordance with national law, for example, where a consumer later refuses to be bound by a settlement.
(47)
For reasons of expediency and efficiency, Member States, in accordance with national law, should be able to provide consumers with the possibility of directly benefitting from a redress measure after it is issued, without being subject to requirements regarding prior participation in the representative action.
(48)
Member States should lay down rules for the coordination of representative actions, individual actions brought by consumers and any other actions for the protection of the individual and collective interests of consumers as provided under Union and national law. Injunctive measures issued under this Directive should be without prejudice to individual actions for redress measures brought by consumers who have been harmed by the practice that is the subject of the injunctive measures.
(49)
Member States should require qualified entities to provide sufficient information in support of representative actions for redress measures, including a description of the group of consumers affected by the infringement and the questions of fact and law to be dealt with in that representative action. The qualified entity should not be required to individually identify every consumer concerned by the representative action in order to initiate the representative action. In representative actions for redress measures, the court or administrative authority should verify at the earliest possible stage of the proceedings whether the case is suitable to be brought as a representative action, given the nature of the infringement and characteristics of the harm suffered by the consumers affected.
(50)
Redress measures should identify the individual consumers, or at least describe the group of consumers entitled to the remedies provided by those redress measures, and, if applicable, state the method of quantification of harm and the relevant steps to be taken by consumers and traders to implement the remedies. Consumers who are entitled to remedies should be able to benefit from those remedies without having to bring separate proceedings. For example, a requirement for separate proceedings implies the obligation on the part of the consumer to bring an individual action before a court or administrative authority for the quantification of harm. Conversely, in order for a consumer to obtain his or her remedies, it should be possible under this Directive to require consumers to take certain steps, such as making themselves known to an entity in charge of the enforcement of the redress measure.
(51)
Member States should lay down or retain rules on time limits, such as limitation periods or other time limits, for individual consumers to exercise their right to benefit from the redress measures. Member States should be able to lay down rules on the destination of any outstanding redress funds that were not recovered within the established time limits.
(52)
Qualified entities should be fully transparent vis-a-vis courts or administrative authorities with regard to the source of funding of their activities in general and with regard to the source of funds that support a specific representative action for redress measures. This is necessary to enable courts or administrative authorities to assess whether third-party funding, insofar as allowed in accordance with national law, complies with the conditions provided for in this Directive, whether there is a conflict of interest between the third party funding provider and the qualified entity that poses a risk of abusive litigation, and whether the funding by a third party that has an economic interest in the bringing of the representative action for redress measures or its outcome would divert the representative action away from the protection of the collective interests of consumers. The information provided by the qualified entity to the court or administrative authority should enable the court or administrative authority to assess whether the third party could unduly influence the procedural decisions of the qualified entity in the context of the representative action, including decisions on settlement, in a manner that would be detrimental to the collective interests of the consumers concerned, and to assess whether the third party is providing funding for a representative action for redress measures against a defendant who is a competitor of that third-party funding provider or against a defendant on whom the third party funding provider is dependant. The direct funding of a specific representative action by a trader operating in the same market as the defendant should be considered to imply a conflict of interest, since the competitor could have an economic interest in the outcome of the representative action which would not be the same as the consumers’ interest.
The indirect funding of a representative action by organisations that are funded through equal contributions by their members or through donations, including traders’ donations in the framework of corporate social responsibility initiatives or crowdfunding, should be considered eligible for third-party funding, provided that the third-party funding complies with the requirements of transparency, independence and the absence of conflicts of interest. If any conflicts of interest are confirmed, the court or administrative authority should be empowered to take appropriate measures, such as requiring the qualified entity to refuse or change the relevant funding and, if necessary, rejecting the legal standing of the qualified entity or declaring a specific representative action for redress measures inadmissible. Such a rejection or declaration should not affect the rights of the consumers concerned by the representative action.
(53)
Collective settlements aimed at providing redress to consumers that have suffered harm should be encouraged in representative actions for redress measures.
(54)
The court or administrative authority should be able to invite the trader and the qualified entity that brought the representative action for redress measures to enter into negotiations aimed at reaching a settlement on the redress to be provided to the consumers concerned by the representative action.
(55)
Any settlement reached within the context of a representative action for redress measures should be approved by the relevant court or administrative authority unless the conditions of the settlement cannot be enforced or the settlement would be contrary to mandatory provisions of national law, applicable to the cause of the action, which cannot be derogated from to the detriment of consumers by way of contract. For example, a settlement which would explicitly leave unchanged a contractual term that gives the trader an exclusive right to interpret any other term of that contract could be against mandatory provisions of national law.
(56)
Member States should be able to lay down rules allowing a court or administrative authority also to refuse to approve a settlement where the court or administrative authority considers the settlement to be unfair.
(57)
Approved settlements should be binding upon the qualified entity, the trader and the individual consumers concerned. However, Member States should be able to lay down rules under which the individual consumers concerned are given the possibility to accept a settlement or to refuse to be bound by it.
(58)
Ensuring that consumers are informed about a representative action is crucial to its success. Qualified entities should inform consumers on their websites about the representative actions they have decided to bring before a court or administrative authority, the status of the representative actions that they have brought and the outcomes of such representative actions, in order to enable consumers to take an informed decision as to whether they wish to participate in a representative action and to take the necessary steps in a timely manner. The information that the qualified entities are required to provide to consumers should include, as relevant and appropriate, an explanation, in intelligible language, of the subject matter and of the possible or actual legal consequences of the representative action, the qualified entity’s intention to bring the action, a description of the group of consumers concerned by the representative action, and the necessary steps to be taken by the consumers concerned, including the safeguarding of necessary evidence, in order for the consumer to be able to benefit from the injunctive measures, redress measures or the approved settlements as provided for in this Directive. Such information should be adequate and proportionate to the circumstances of the case.
(59)
Without prejudice to the obligation of qualified entities to provide information, the consumers concerned should be informed about the ongoing representative action for redress measures in order to be able to explicitly or tacitly express their wish to be represented in the representative action. Member States should make that possible by laying down appropriate rules on the dissemination of information about representative actions to consumers. It should be for Member States to decide who should be responsible for disseminating that information.
(60)
Consumers should also be informed of final decisions that provide for injunctive measures, redress measures or approved settlements, of their rights following a finding that an infringement exists, and of any subsequent steps to be taken by the consumers concerned by the representative action, particularly in relation to obtaining redress. The reputational risks associated with disseminating information about the infringement are also important in relation to deterring traders from infringing consumer rights.
(61)
To be effective, the information about ongoing representative actions and concluded representative actions should be adequate and proportionate to the circumstances of the case. Such information could be provided, for example, on the qualified entity’s or the trader’s website, in national electronic databases, on social media, on online marketplaces, or in popular newspapers, including newspapers that are published exclusively by electronic means of communication. Where possible and appropriate, consumers should be informed individually by letter transmitted electronically or in paper form. Such information should be provided upon request in formats that are accessible to persons with disabilities.
(62)
It should be for the infringing trader, at the trader’s expense, to inform all consumers concerned of the final injunctive measures and final redress measures. The trader should also inform the consumers of any settlement approved by a court or administrative authority. Member States should be able to lay down rules under which such an obligation would depend on a request by the qualified entity. If, under national law, the qualified entity or the court or administrative authority is to provide the information concerning final decisions and approved settlements to the consumers concerned by the representative action, the trader should not be required to provide that information a second time. It should be for the qualified entity to inform the consumers concerned about final decisions on the rejection or dismissal of representative actions for redress measures.
(63)
Member States should be able to set up national electronic databases that are publicly accessible through websites providing information on the qualified entities designated in advance for the purpose of bringing domestic representative actions and cross-border representative actions and general information on ongoing and concluded representative actions.
(64)
Member States should ensure that the final decision of a court or administrative authority of any Member State concerning the existence of an infringement harming the collective interests of consumers can be used by all parties as evidence in the context of any other action seeking redress measures against the same trader for the same practice before their courts or administrative authorities. In line with the independence of the judiciary and the free evaluation of evidence, this should be without prejudice to national law on evaluation of evidence.
(65)
Limitation periods are usually suspended when an action is brought. However, actions for injunctive measures do not necessarily have suspensive effect in relation to subsequent redress measures that might arise from the same infringement. Member States should therefore ensure that a pending representative action for injunctive measures has the effect of suspending or interrupting applicable limitation periods in respect of the consumers concerned by the representative action, so that those consumers, regardless of whether they act in their own capacity or are represented by a qualified entity, are not prevented from subsequently bringing an action for redress measures concerning the alleged infringement due to the expiry of limitation periods during the course of the representative action for injunctive measures. When bringing a representative action for an injunctive measure, the qualified entity should sufficiently define the group of consumers whose interests are affected by the alleged infringement, who could possibly have a claim arising from that infringement and who could be affected by the expiry of limitation periods during that representative action. For the avoidance of doubt, also a pending representative action for a redress measure should have the effect of suspending or interrupting the applicable limitation periods in respect of the consumers concerned by that representative action.
(66)
In order to ensure legal certainty, the suspension or interruption of limitation periods imposed in accordance with this Directive should apply only to claims for redress based on infringements that occurred on or after 25 June 2023. This should not preclude the application of national provisions on suspension or interruption of limitation periods which applied prior to 25 June 2023 to claims for redress based on infringements that occurred before that date.
(67)
Representative actions for injunctive measures should be dealt with with due procedural expediency. If an infringement is ongoing, the need for expediency could be greater. Representative actions for injunctive measures with provisional effect should be dealt with by way of a summary procedure in order to prevent any or further harm being caused by the infringement, where appropriate.
(68)
Evidence is essential to establishing whether a representative action for injunctive measures or redress measures is well founded. However, business-to-consumer relationships are often characterised by information asymmetries and the necessary evidence can be held exclusively by the trader, making it inaccessible to the qualified entity. Qualified entities should therefore have the right to request the court or administrative authority to order the trader to disclose evidence relevant to their claim. On the other hand, taking into account the principle of equality of arms, the trader should have a similar right to request evidence that is in control of the qualified entity. The need, scope and proportionality of orders to disclose evidence should be carefully assessed by the court or administrative authority before which the representative action is brought, in accordance with national procedural law, having regard to the protection of legitimate interests of third parties and subject to the applicable Union and national rules on confidentiality.
(69)
In order to ensure the effectiveness of representative actions, infringing traders should face effective, dissuasive and proportionate penalties for the failure or refusal to comply with an injunctive measure. Member States should ensure that those penalties could take the form of fines, for example, conditional fines, periodical payments or penalty payments. There should also be penalties for the failure or refusal to comply with an order to provide information to the consumers concerned regarding final decisions or settlements or for the failure or refusal to disclose evidence. It should also be possible to apply other types of penalties, such as procedural measures, for refusal to comply with an order to disclose evidence.
(70)
Having regard to the fact that representative actions further the public interest by protecting the collective interests of consumers, Member States should retain or take measures aiming to ensure that qualified entities are not prevented from bringing representative actions under this Directive due to the costs associated with the procedures. Such measures could include limiting applicable court or administrative fees, granting the qualified entities access to legal aid, where necessary, or providing qualified entities with public funding to bring representative actions, including structural support or other means of support. However, Member States should not be required to finance representative actions.
(71)
Cooperation and the exchange of information between qualified entities from different Member States have proven to be useful in addressing in particular cross-border infringements. There is a need to continue capacity-building and cooperation measures and to extend them to a larger number of qualified entities across the Union in order to increase the use of representative actions with cross-border implications.
(72)
For the purpose of evaluating this Directive, Member States should provide the Commission with data on representative actions brought under this Directive. Member States should provide information on the number and type of representative actions that have been concluded before any of their courts or administrative authorities. Information on the outcomes of representative actions, such as whether they were admissible, and whether they were successful or whether they resulted in an approved settlement, should also be provided. In order to ease the Member States’ administrative burden in fulfilling those obligations, it should suffice to provide the Commission with general information on the type of infringements and the parties, in particular concerning injunctive measures. As regards parties, for example, it should be enough to inform the Commission as to whether the qualified entity was a consumer organisation or a public body, and as to the trader’s field of business, for example, financial services. Alternatively, Member States should be able to provide the Commission with copies of relevant decisions or settlements. Information on the specific identities of the consumers concerned by the representative actions should not be provided.
(73)
The Commission should draw up a report, accompanied if appropriate by a legislative proposal, assessing whether cross-border representative actions could be best addressed at Union level by establishing a European ombudsman for representative actions for injunctive measures and redress measures.
(74)
This Directive respects fundamental rights and observes the principles recognised in particular by the Charter. Accordingly, this Directive should be interpreted and applied in accordance with those rights and principles, including those related to the right to an effective remedy and to a fair trial, as well as the right of defence.
(75)
With regard to environmental law, this Directive takes account of the United Nations Economic Commission for Europe Convention of 25 June 1998 on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the ‘Aarhus Convention’).
(76)
Since the objectives of this Directive, namely to ensure that a representative action mechanism for the protection of the collective interests of consumers is available in all Member States in order to ensure a high level of consumer protection and contribute to the proper functioning of the internal market, cannot be sufficiently achieved by the Member States, but can rather, by reason of the cross-border implications of infringements, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives.
(77)
In accordance with the Joint Political Declaration of 28 September 2011 of Member States and the Commission on explanatory documents (9), Member States have undertaken to accompany, in justified cases, the notification of their transposition measures with one or more documents explaining the relationship between the components of a directive and the corresponding parts of national transposition instruments. With regard to this Directive, the legislator considers the transmission of such documents to be justified.
(78)
It is appropriate to provide for rules for the temporal application of this Directive.
(79)
Directive 2009/22/EC should therefore be repealed,
