Magdalena OsmędaAs of June 25, 2023, member states should apply regulations implementing the so-called Representative Actions Directive (i.e., Directive 2020/1828 of the European Parliament and of the Council (EU) of November 25, 2020, on representative actions for the protection of the collective interests of consumers and repealing Directive 2009/22/EC). The provisions of the directive themselves were to be implemented by December 25, 2022.
The directive introduced the new institution of “representative actions,” which can only be brought by “authorized entities” designated by member states.
Two years after the deadline for implementation of the directive, is the institution of an authorized entity popular in Poland and other member states? I will try to answer this question below.
An authorized entity is an entity that has the legitimacy to bring representative actions. This institution is dedicated to Article 4 of the Directive, from which it follows that:
Member states decide on the designation of both entities authorized to bring domestic actions and entities authorized to bring cross-border actions. Member states provide the European Commission with information on which entities have been designated to bring cross-border actions – and, on that basis, are included in a list maintained by the European Commission.
In Poland, the directive was implemented by the Act of July 24, 2024, amending the Act on Pursuing Claims in Group Proceedings and Certain Other Acts, which entered into force on August 29, 2024. The Polish legislator decided that the Financial Ombudsman is the authorized entity ex officio, while consumer organizations can become authorized entities upon request. The criteria for entry into the register (kept by the President of the Office of Competition and Consumer Protection) are the same as those provided for in the directive; it is not possible to appoint an authorized entity on an ad hoc basis for a given case.
The Financial Ombudsman is included in the register kept by the President of the Office of Competition and Consumer Protection and in the list kept by the European Commission. The Polish Financial Ombudsman can therefore bring both types of representative actions – domestic and cross-border.
However, according to information from the President of the OCCP (obtained through access to public information), as of January 9, 2025, the President of the OCCP had not received any application for entry in the register of authorized entities. Does this mean that Polish consumer organizations are not interested in serving as authorized entities? In my opinion, it is too early to draw such conclusions. The possibility to submit applications has existed for about 5 months; this is too short a time to prejudge whether consumer organizations will be active in this field. After all, it should be remembered that obtaining an entry in the register or list requires meeting a number of conditions, including having the appropriate internal acts. Once entered, the organization must fulfill certain obligations (including reporting). Moreover, the organization must have adequate organizational and financial resources to bring class actions. Therefore, applying for entry requires certain preparations and a real intention (and ability) to bring class actions. Entry for entry’s sake makes little sens and only entails additional burdens for the consumer organization.
On the other hand, the above prompts one more reflection as to whether it was right that the legislator decided that the entity authorized ex officio would be only the Financial Ombudsman, which can only act on behalf of a specific group of consumers (in matters of customers of a financial market entity within the meaning of Article 2(1) of the Act of August 5, 2015. on the handling of complaints by financial market entities, on the Financial Ombudsman and the Financial Education Fund, and in matters arising from a contract for the provision of services or the performance of activities for an individual by a financial institution within the meaning of Article 4(4) of the Act of August 5, 2015 on macroprudential supervision of the financial system and crisis management in the financial system). Other consumers are thus, in a sense “disadvantaged” by the lack of a “public” authorized entity that could act in their interests.
In recent months, however, one can observe increased interest in acting as an entity authorized to bring cross-border lawsuits for entities from other member states.
The list of entities authorized to bring cross-border actions is maintained by the European Commission in electronic form.1 As of this moment, a total of 55 entities from 20 member states are already included in the list. Meanwhile, as recently as the end of September 2024, 33 entities from 10 countries were listed. The last six months can therefore be assessed as a period of active preparation by member states to apply in practice the new institution of representative actions. Indeed, for such actions to be brought, authorized entities must first be registered.
Both consumer organizations and public entities are included in the list maintained by the European Commission:
As can be seen from the above, 30 consumer organizations and 25 public entities are included in the list. In my opinion, this is a good sign that the new institution is of great interest to consumer organizations because it shows social activism and concern for consumer interests.
Looking at the entries in the list maintained by the European Commission, it can be hypothesized that the institution of the authorized entity has taken hold in the member states. Numerous entries on the list, especially of consumer organizations, give cause for optimism regarding the development of class actions in Europe.
Less optimistic are the reflections on the lack of activity of Polish consumer organizations in obtaining entries in the register of the President of the OCCP or the list of the European Commission. However, as I mentioned earlier, the Polish regulations allowing applications for entry have been in force for a relatively short time, too short to make firm statements.
1 https://representative-actions-collaboration.ec.europa.eu/cross-border-qualified-entities
