DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on representative actions for the protection of the collective interests of consumers, and repealing Directive 2009/22/EC - Preparation for the trilogue - Hoofdinhoud

Council of the European Union

Brussels, 21 February 2020 (OR. en)

6163/20

Interinstitutional File:

2018/0089(COD) i LIMITE

CONSOM 28 MI 42 ENT 19 JUSTCIV 24 DENLEG 16 CODEC 123

NOTE

From: General Secretariat of the Council

To: Permanent Representatives Committee

No. prev. doc.: 14210/20 + ADD 1

No. Cion doc.: 7877/18 + ADD 1 - 5

Subject: DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on representative actions for the protection of the collective interests of

consumers, and repealing Directive 2009/22/EC i

• - 

  Preparation for the trilogue

• I. 

  INTRODUCTION

• 1. 

  On 11 April 2018, the Commission transmitted the above-mentioned proposal to the European

  Parliament and to the Council. This proposal is part of the 'New Deal for Consumers' package

  which consists of two Directives 1 2 and a horizontal Communication and aims to ensure that

  consumers fully benefit from their rights under Union law and compliant traders from fairer

  competition conditions.

1 Directive (EU) 2019/2161 amending Council Directive 93/13/EEC i and Directives 98/6/EC i, 2005/29/EC i and 2011/83/EU as regards the better enforcement and modernisation of Union consumer protection rules (OJ L 328, 18.12.2019).

2 Cf. doc. 7875/18.

• 2. 

  This draft directive proposes to modernise and replace the Injunctions Directive 3 by providing

redress measures as well as injunction measures in case of infringements of Union law

affecting a group of consumers. More specifically, the proposal allows qualified entities to

defend the collective interests of consumers through the bringing of representative actions

against infringing traders, including traders domiciled in another Member State. The proposal

provides for redress measures which include financial compensation and also introduces

safeguards against the risk of abusive litigation (e.g. by requiring qualified entities to be

transparent on sources of funding).

• 3. 

  The European Economic and Social Committee issued its opinion on 20 September 2018. 4

• 4. 

  The responsible committee in the European Parliament is the Committee on Legal Affairs

  (JURI). Mr Geoffroy Didier (EPP – FR) is the rapporteur. The European Parliament adopted

its position at first reading on 26 March 2019 5 and confirmed the decision to enter into

interinstitutional negotiations on 14 of January 2020.

• 5. 

  The proposal was examined during the Bulgarian, the Austrian and the Romanian

Presidencies. The Finnish Presidency submitted a compromise package to the Council

(Competitiveness) on 28 November 2019 that was adopted as a general approach. The main

changes to the Commission proposal were a clear distinction between domestic and

cross-border representative actions and a better safeguarding of the principle of procedural

autonomy.

II. PARTIAL PRESIDENCY COMPROMISE

• 6. 

  The negotiations with the European Parliament began on 14 January 2020 with an opening

trilogue and five technical meetings were held since. The next trilogue will take place on 2

March 2020. On 13 January 2020 the Presidency examined the EP position at a meeting of the

Working Party on Consumer Protection. At the Working Party meeting of 27 January 2020

delegations were debriefed on ongoing negotiations with the EP. At the Working Party

meeting of 18 February 2020 the Presidency presented a partial compromise that was

generally well received by delegations.

3 Directive 2009/22/EC i on injunctions for the protection of consumers' interests (OJ L 110, 1.5.2009).

4 EESC INT/853.

5 P8_TA(2019)0222.

• 7. 

  The partial compromise aims at modifying the general approach on articles 4, 4a and 7 on

  qualified entities and their funding. The aim is to meet some of the EP concerns reflected in

their first reading opinion such as general criteria for qualified entities and harmonised

safeguards on the funding of such entities to avoid abusive litigation. The changes proposed

by the Presidency also aim at bringing the text structure closer to the Commission proposal in

an effort to facilitate ongoing negotiations with the EP.

• 8. 

  To this end, the Presidency proposes the following changes:

• - 

  streamlining article 4 to cover qualified entities in both domestic and cross-border

actions. Since this article now covers the provisions of article 4a of the general

approach, such article 4a would be deleted.

• - 

  a new article 4-a containing the provisions on information and monitoring of qualified

  entities that were previously in article 4 of the general approach (to avoid a long article

  4 after the new additions).

• - 

  reintroducing article 7 of the Commission proposal on funding of qualified entities

  (deleted in the general approach). This article aims at preventing conflicts of interest

  and minimising the risk of abusive litigation in actions for redress when third party

  funding is involved.

IV. CONCLUSION

• 9. 

  The Presidency partial compromise text set out in the annex reflects the continuous efforts of

  the Presidency and the Member States at bringing the text of both colegislators closer on the

  above provisions without compromising the principles defended in the general approach. The

Presidency partial compromise text is in the 4th column of the tables in the annex and the

changes compared to the Commission proposal are highlighted in bold and strikethrough.

• 10. 

  Consequently, the Permanent Representatives Committee is invited to examine and endorse

the Presidency partial compromise text as set out in the annex to this note with a view to adapt

the negotiating mandate for the incoming informal trilogues with the European Parliament.

ANNEX

Articles 4 and 4-a and recitals 10c and 11e

Commission Proposal EP Mandate Council General Approach Partial Presidency compromise

Article 4

Article 4 Article 4 Article 4 Article 4

75 Qualified entities Qualified representative entities Qualified entities for the purpose Qualified entities of domestic representative

AM 41 actions

Article 4(1), first subparagraph

• 1. 

  Member States shall ensure 1. Member States shall ensure 1. Member States shall ensure 1. Member States shall ensure that representative actions can be that representative actions can be that domestic representative that representative actions can brought by qualified entities brought by qualified entities actions can be brought by be brought by qualified entities designated, at their request, by the designated, at their request, by the qualified entities designated, at designated, at their request, by Member States in advance for this Member States in advance for this their request, by the Member the by Member States in purpose and placed in a publicly purpose and placed in a publicly States in advance for this advance for this purpose and available list. available list or their courts shall purpose and placed in a publicly placed in a publicly available

76 designate within their respective available list. list.

territory at least one qualified representative entity for the purpose of bringing representative actions within the meaning of Article 3(4) .

AM 42

76a

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Commission Proposal EP Mandate Council General Approach Partial Presidency compromise

• 2. 

  Member States shall ensure that entities, in particular consumer organizations, including those representing members from more than one Member State, are eligible to be designated for the status of qualified entity for the purpose of bringing domestic actions or cross-border representative actions, or both.

Article 4(1), second subparagraph, introductory part

Member States shall designate an Member States shall designate an 3. Member States shall entity as qualified entity if it entity as qualified representative deleted designate an entity, at its complies with the following entity if it complies with all of the request, as a as qualified

77 criteria: following criteria: Moved to Article 4a, paragraph 3 entity for the purpose of bringing cross-border

AM 42 representative actions, if it

complies with all of the following criteria:

Article 4(1), second subparagraph, point(a)

(a) it is properly constituted (a) it is properly constituted (a) it is a legal person 78 according to the law of a Member according to the law of a Member deleted properly constituted according

State; State; to the law of athe Member Moved to Article 4a, paragraph 3 State of its designation 18

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Commission Proposal EP Mandate Council General Approach Partial Presidency compromise

months prior to the designation request and can demonstrate 12 months of actual public activity in the protection of consumers’ interest;

Article 4(1), second subparagraph, point(b)

(b) it has a legitimate interest in (b) it has a its statutes or another (b) its statutory purpose and

ensuring that provisions of Union governance document and its deleted its continued activity

law covered by this Directive are continued activity involving the demonstrates that it has a complied with; defence and protection of Moved to Article 4a, paragraph 3 legitimate interest in ensuring consumers interests demonstrate that provisions ofprotecting

79 its legitimate interest in ensuring consumer interests as

that provisions of Union law provided by Union law covered by this Directive are covered by this Directive are complied with; complied with;

AM 43

Article 4(1), second subparagraph, point(c)

(c) it has a non-profit making (c) it has a non-profit making (c) it has a non-profit making

80 character. character. deleted character.;

Moved to Article 4a, paragraph 3

Article 4(1), second subparagraph, point(ca)

80a

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Commission Proposal EP Mandate Council General Approach Partial Presidency compromise

(ca) it acts in a way that is independent from other entities and from persons other than consumers who might have an economic interest in the outcome of the representative actions, in particular from market operators;

AM 44

80aa (d) it is in a sound and stable financial situation;

Article 4(1), second subparagraph, point(cb)

(cb) it does not have financial agreements with plaintiff law

80b firms beyond a normal service

contract;

AM 45

Article 4(1), second subparagraph, point(cc)

(cc) it has established internal (e) it has established

80c procedures to prevent a conflict procedures for preventing of interest between itself and its influence by persons, other

funders; than consumers, who have an economic interest in the

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Commission Proposal EP Mandate Council General Approach Partial Presidency compromise

AM 46 bringing of any representative action, in particular by traders, including in case of funding by third parties, and preventing any conflict of interest between itself and its funders;

Article 4(1), second subparagraph, introductory part a

Members States shall provide (f) it discloses publicly by that the qualified representative any appropriate means, in entities disclose publicly, by particular on its website, in appropriate means, such as on its plain and intelligible website, in plain and intelligible language, information language, how it is financed, its demonstrating compliance

80d organisational and management with the above listed criteria structure, its objective and its and information about the

working methods as well as its sources of its funding, its activities. organisational and management structure,

AM 47 membership, objectives and

activities.

• 4. 

  Member States may

80da establish criteria for the designation of qualified

entities for the purpose of bringing domestic

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representative actions, provided that these criteria do not hamper the effective functioning of representative actions as set out by this Directive.

Member States may decide that the criteria set out in paragraph 3 apply also to

80db the designation of qualified entities for the purpose of bringing domestic

representative actions.

• 5. 

  Compliance by a qualified entity with the criteria referred to in paragraphs 3 and 4 shall be without prejudice to the right of

80dc courts or administrative authorities to examine

whether the statutory purpose of a qualified entity justifies it bringing representative action in a specific case.

Article 4(1), third subparagraph

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Member States shall assess on a Member States shall assess on a

regular basis whether a qualified regular basis whether a qualified deleted deleted

entity continues to comply with representative entity continues to these criteria. Member States shall comply with these criteria. Moved to Article 4a, paragraph 4 ensure that the qualified entity Member States shall ensure that

81 loses its status under this the qualified representative entity Directive if it no longer complies loses its status under this

with one or more of the criteria Directive if it no longer complies listed in the first subparagraph. with one or more of the criteria listed in the first subparagraph.

AM 47

Article 4(1), third subparagraph a

Member States shall establish a list of representative entities complying with the criteria listed in paragraph 1 and make it

81a publicly available. They shall

communicate the list to the Commission updated where necessary.

AM 47

Article 4(1), third subparagraph b

81b The Commission shall publish the list of representative entities

received from the Member States

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on a publicly accessible online portal.

AM 47

Article 4(1a)

1a. Member States may provide that public bodies already designated before the entry into force of this Directive in accordance with national law

81c shall remain eligible for the

status of representative entity within the meaning of this Article.

AM 48

Article 4(2)

• 2. 

  Member States may designate 26. Member States may

a qualified entity on an ad hoc deleted deleted designate a qualified entity, at

basis for a particular its own request, on an ad hoc

representative action, at its AM 49 Moved to paragraph 4b basis for the purpose of

82 request, if it complies with the bringing a particular domestic criteria referred to in paragraph 1. representative action, at its

request, if it complies with the criteria referred to in paragraph 1for qualified entities as provided for in national law.

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Commission Proposal EP Mandate Council General Approach Partial Presidency compromise

Article 4(3)

• 3. 

  Member States shall ensure 3. Member States shall ensure 3. Member States shall ensure 37. Member States shall that in particular consumer that consumer organisations that in particular consumer ensure that in particular organisations and independent meeting the criteria listed in organisations and independent consumer organisations and public bodies are eligible for the paragraph 1 and in particular public bodies are eligible for the independentNotwithstanding status of qualified entity. Member consumer organisations and status of qualified entity., paragraphs 3 and 4, Member States may designate as qualified independent public bodies are including those representing States may designate public entities consumer organisations eligible for the status of qualified consumers from more than one bodies are eligibleas qualified that represent members from more representative entity. Member Member States may designate as entities for the status of than one Member State. States may designate as qualified qualified entities consumer qualified entitypurpose of

83 entities consumer organisations organisations that represent bringing representative that represent members from more members from more than one actions. Member States may

than one Member State. Member StateState, are eligible designateprovide that public to apply for the status of bodies already designated as

AM 50 qualified entity in accordance qualified entities consumer

with national law. organisations that represent members from more than one Member Statein the meaning of Directive 2009/22/EC i shall remain eligible as qualified entities.

Article 4(4)

• 4. 

  Member States may set out

84 rules specifying which qualified deleted deleted deleted entities may seek all of the

measures referred to in Articles 5 AM 51

and 6, and which qualified entities

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may seek only one or more of these measures.

Article 4(4a)

(4a) Member States may 84a designate public bodies as

qualified entities.

Article 4(4b)

(4b) Member States may designate a qualified entity, at its own request, on an ad hoc

84b basis for the purpose of a particular representative action.

Moved from paragraph 2

Article 4(4c)

(4c) Information on qualified entities designated in advance

84c for the purpose of any representative action shall be made available to the public.

Article 4(5)

85

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Commission Proposal EP Mandate Council General Approach Partial Presidency compromise

• 5. 

  The compliance by a qualified 5. The compliance by a qualified

entity with the criteria referred to entity with the criteria referred to deleted deleted

in paragraph 1 is without in paragraph 1 is without prejudice to the right of the court prejudice to the right duty of the or administrative authority to court or administrative authority examine whether the purpose of to examine whether the purpose of the qualified entity justifies its the qualified entity justifies its taking action in a specific case in taking action in a specific case in accordance with Article 5(1). accordance with Article 4 and Article 5(1). 5(1).

AM 52

Article 4-a

Article 4-a 85-a Information and monitoring

of qualified entities

• 1. 

  Member States shall communicate to the Commission a list of the qualified entities designated

85-b in advance for the purpose of bringing cross-border

representative actions, including the name and purpose of those qualified entities no later than on… [one year after the date of

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Commission Proposal EP Mandate Council General Approach Partial Presidency compromise

transposition] and whenever there are changes to that list. Member States shall make that list publicly available.

The Commission shall make a compiled list of these qualified entities publicly

85-c available. The list shall be updated annually and

whenever changes are communicated to the Commission.

• 2. 

  Member States shall ensure that information on qualified entities designated

85-d in advance for the purpose of bringing domestic

representative actions is made available to the public.

• 3. 

  Member States shall assess

85-e at least every five years whether qualified entities

continue to comply with the criteria referred to in Article

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Commission Proposal EP Mandate Council General Approach Partial Presidency compromise

4(3). Member States shall ensure that the qualified entity loses its status if it no longer complies with one or more of the criteria.

• 4. 

  If a Member State or the Commission raises concerns regarding the compliance by a qualified entity with the criteria laid down in Article

85-f 4(3), the Member State that designated that entity shall

investigate the concerns and, where appropriate, revoke the designation if one or more of the criteria are not complied with.

• 5. 

  Member States shall designate national contact points for the purpose of paragraph 4 and

85-g communicate the name and contact details of those

contact points to the Commission. The Commission shall compile a list of designated contact

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points and make that list available to the Member States.

Commission Proposal EP Mandate Council General Approach Parcial Presidency compromise

Recital 10c

(10c) Member States could set

out rules to limit the right of a deleted and moved partly to qualified entity to bring a crossrecital 11e border representative action to the area of activity of that entity. The rules could provide,

19c for example, that qualified entities protecting consumer interests in the field of food safety or passenger rights could only bring cross-border

representative actions that are related to these purposes.

Recital 11e

20e (11e) The mutual recognition of (11e) The mutual the legal capacity of qualified recognition of the legal

entities designated for the capacity of qualified entities

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purpose of cross-border designated for the purpose of representative actions should be cross-border representative ensured. The identity of these actions should be ensured. organisations and public bodies The identity of these should be communicated to the organisations and public Commission and the bodies should be Commission should make that communicated to the list publicly available. Inclusion Commission and the on the list should serve as proof Commission should make of the legal capacity of the that list publicly available. organisation or public body Inclusion on the list should bringing the action. This should serve as proof of the legal be without prejudice to the right capacity of the organisation to examine whether the purpose or public body bringing the of the qualified entity justifies action. This should be the action in a specific case. without prejudice to the right to examine whether the purpose of the qualified entity justifies the action in a specific case, for example, that qualified entities protecting consumer interests in the field of food safety or passenger rights could only bring representative actions that are related to such purposes.

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Article 7 and recital 25

Commission Proposal EP Mandate Council General Approach Parcial Presidency compromise

Article 7

Article 7 Article 7 Article 7

Funding Funding Admissibility of a deleted Funding of representative

102 representative action actions for redress

AM 68

Article 7(1)

• 1. 

  The qualified entity seeking a 1. The qualified representative

redress order as referred in Article entity seeking a redress order as deleted deleted

6(1) shall declare at an early stage referred in Article 6(1) shall of the action the source of the submit to the court or funds used for its activity in administrative authority at the general and the funds that it uses earliest declare at an early stage to support the action. It shall of the action a complete financial demonstrate that it has sufficient overview, listing all sources of the

103 financial resources to represent source of the funds used for its the best interests of the consumers activity in general and the funds

concerned and to meet any that it uses to support the action in adverse costs should the action order to demonstrate the absence fail. of conflict of interest . It shall demonstrate that it has sufficient financial resources to represent the best interests of the consumers concerned and to meet any adverse costs should the action fail.

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Commission Proposal EP Mandate Council General Approach Parcial Presidency compromise

AM 69

Article 7(2), introductory part

• 2. 

  Member States shall ensure 2. Member States shall ensure 21. Member States shall that in cases where a that in cases where a The deleted ensure that in cases, where a representative action for redress is representative action for redress is representative action for funded by a third party, it is funded by a third party, it is redress is funded by a third prohibited for the third party: prohibited for may be declared party, it is prohibited for the

104 inadmissible by the national third party:insofar as allowed court if it establishes that the in accordance with national funding by the third party would : law, conflicts of interests are prevented, including with

AM 70 regard to decisions on

settlements.

• 2. 

  To that end, Member 104a States shall in particular

ensure that:

Article 7(2), point(a)

(a) to influence decisions of the (a) to influence decisions of the (a) to influence decisions of

qualified entity in the context of a qualified representative entity in deleted the qualified entityentities in

105 representative action, including on the context of a representative the context of a representative settlements; action, including the initiation of action are not unduly

representative actions and influenced by a third party decisions on settlements; in a way that would be

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Commission Proposal EP Mandate Council General Approach Parcial Presidency compromise

AM 71 detrimental to the collective interests of consumers

concerned by the action, including decisions on settlements;

Article 7(2), point(b)

(b) to provide financing for a (b) to provide financing for a (b) to provide financing for a collective action against a collective action against a deleted collective actionthat defendant who is a competitor of defendant who is a competitor of representative action is not

106 the fund provider or against a the fund provider or against a brought against a defendant defendant on whom the fund defendant on whom the fund who is a competitor of the

provider is dependant; provider is dependant; fund provider or against a defendant on whom the fund provider is dependant;.

Article 7(3)

• 3. 

  Member States shall ensure 3. Member States shall ensure 3. Member States shall ensure

that courts and administrative that courts and administrative deleted that courts and administrative

authorities are empowered to authorities are empowered to authorities are empowered to assess the circumstances referred assess the circumstances assess assess compliance with to in paragraph 2 and accordingly the absence of conflict of interest paragraphs 1 and 2 at the

107 require the qualified entity to referred to in paragraph 2 and start of the action and at any refuse the relevant funding and, if accordingly require the qualified later stage of the proceedings necessary, reject the standing of entity to refuse the relevant in case any justified doubts

the qualified entity in a specific funding and, if necessary, reject arise in that regard. To that case. the standing of the qualified entity end, qualified entities shall in a specific case 1 and the disclose to the court or circumstances referred to in administrative authority a

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paragraph 2 at the stage of financial overview listing all admissibility of the sources of funds used to representative action and at a support the actionthe later stage during the court circumstances referred to in proceedings if the circumstances paragraph 2 and accordingly only yield then . require the qualified entity to refuse the relevant funding

AM 72 and, if necessary, reject the

standing of the qualified entity in a specific case.

Article 7(3a)

3a. Member States shall ensure that the court or administrative authority have the authority to

107a dismiss manifestly unfounded cases at the earliest possible stage

of proceedings.

AM 73

• 4. 

  Member States shall ensure that courts and administrative authorities

107aa are empowered to take

appropriate measures when

acting in accordance with

paragraphs 1 and 2. If the

legal standing of the

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qualified entity is rejected in a specific action, such a rejection shall not affect the rights of the consumers concerned by the action.

Commission Proposal EP Mandate Council General Approach Parcial Presidency compromise

Recital 25

• (25) 

  Qualified entities should be (25) Qualified representative (25) Qualified entities should fully transparent about the source entities should be fully transparent deleted be fully transparent about the of funding of their activity in about the source of funding of source of funding of their general and regarding the funds their activity in general and activity in general and supporting a specific regarding the funds supporting a regarding the funds supporting representative action for redress in specific representative action for a specific representative action order to enable courts or redress in order to enable courts or for redress in order to enable administrative authorities to administrative authorities to courts or administrative assess whether there may be a assess whether there may be a authorities to assess whether

34 conflict of interest between the conflict of interest between the there may be a conflict of third party funder and the third party funder and the interest between the third party

qualified entity and to avoid risks qualified entity and to avoid risks funder and the qualified entity of abusive litigation as well as to of abusive litigation as well as to and to avoid risks of abusive assess whether the funding third assess whether the funding third litigation as well as to assess party has sufficient resources in party qualified entity has whether the funding third party order to meet its financial sufficient resources in order to has sufficient resources in commitments to the qualified represent the best interests of order to meet its financial entity. The information provided consumers concerned and to commitments to the qualified by the qualified entity to the court support all necessary legal costs entity. The information or administrative authority should the action fail meet its provided by the qualified entity overseeing the representative financial commitments to the to the court or administrative

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action should enable it to assess qualified entity . The information authority overseeing the whether the third party may provided by the qualified entity at representative action should influence procedural decisions of the earliest stage of proceedings enable it to assess whether the the qualified entity in the context to the court or administrative third party may unduly of the representative action, authority overseeing the influence procedural decisions including on settlements and representative action should of the qualified entity in the whether it provides financing for a enable it to assess whether the context of the representative representative action for redress third party may influence action, including on against a defendant who is a procedural decisions of the settlements in a way that competitor of the fund provider or qualified entity in general and in would be detrimental to the against a defendant on whom the the context of the representative collective interest of fund provider is dependant. If any action, including on settlements consumers concerned and of these circumstances is and whether it provides financing whether it provides financing confirmed, the court or for a representative action for for a representative action for administrative authority should be redress against a defendant who is redress against a defendant empowered to require the a competitor of the fund provider who is a competitor of the fund qualified entity to refuse the or against a defendant on whom provider or against a defendant relevant funding and, if necessary, the fund provider is dependant. If on whom the fund provider is reject standing of the qualified any of these circumstances is dependant. If any of these entity in a specific case. confirmed, the court or circumstances is confirmed, administrative authority should the court or administrative must be empowered to require the authority should be qualified entity to refuse the empowered to requiretake relevant funding and, if necessary, appropriate measures, such reject standing of the qualified as requiring the qualified entity in a specific case. Member entity to refuse or change the States should prevent law firms relevant funding and, if from establishing qualified necessary, rejectrejecting the representative entities. Indirect legal standing of the qualified financing of the action through entity in a specific caseaction. donations, including traders Such a rejection should not donations in the framework of a affect the rights of the corporate social responsibility consumers concerned by the

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initiatives, shall be eligible for action. third party financing provided that it complies with the requirements on transparency, independence and absence of conflict of interest listed in Article 4 and Article 7.

AM 18

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