Magdalena OsmędaAs of 25th June 2023, Member States should apply regulations implementing the so-called Representative Actions Directive (i.e., Directive (EU) 2020/1828 of the European Parliament and of the Council of 25th November 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 25th December 2022.
The directive introduced the new institution of “representative actions,” which shall only be brought by “qualified entities” designated by Member States.
Two years after the deadline for implementation of the directive, is the institution of a qualified entity popular in Poland and other Member States? I will try to answer this question below.
Qualified entity – directive regulations
A qualified entity is an entity that has the legitimacy to bring representative actions. This institution is addressed in Article 4 of the Directive, which states that:
a. Qualified entities are designated by Member States;
b. Representative actions are divided into domestic actions (brought in the state of designation of the qualified enitity) and cross-border actions (brought in a Member State other than the state of designation of the qualified entity);
c. Qualified entities entitled to bring cross-border actions are appointed at the request of a consumer organization that meets the criteria of: having legal personality, activity to ensure the protection of consumer interests, non-profit activity for at least 12 months, not being subject to bankruptcy or insolvency proceedings, independence, transparency of operation;
d. Qualified entities entitled to bring domestic actions should meet criteria consistent with the objectives of the Directive (Member States may decide that these criteria will be the same as those the Directive provides for the designation of qualified entities entitled to bring cross-border actions);
e. Member States may designate ad hoc qualified entities for a specific action;
f. Member States may designate public entities as qualified entities.
Member States decide on the designation of qualified entities entitled to bring domestic actions as well as qualified entities entitled 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, qualified entities are included in the list maintained by the European Commission.
Qualified entity in Polish practice
In Poland, the directive was implemented by the Act of 24th July 2024 amending the Act on pursuing claims in group proceedings and certain other Acts, which entered into force on 29th August 2024. The Polish legislator decided that the Financial Ombudsman is the qualified entity ex officio, while consumer organizations may become qualified entities upon request. The criteria for entry into the register (kept by the President of the Office of Competition and Consumer Protection; hereinafter: „President of UOKiK”) are the same as those provided for in the directive. It is not possible to appoint a qualified entity only for a specific case (ad hoc).
The Financial Ombudsman is included in the register kept by the President of UOKiK and in the list kept by the European Commission. Therefore the Polish Financial Ombudsman is entitled to bring both types of representative actions – domestic and cross-border.
However, according to information from the President of UOKiK (obtained through access to public information), as of 9th January 2025, the President of UOKiK had not received any application for entry in the register of qualified entities. Does this mean that Polish consumer organizations are not interested in acting as qualified entities? In my opinion, it is too early to draw such conclusions. The possibility to submit applications has existed for about 5 months. This time is too short 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 group (representative) actions. Applying for entry in the register requires certain preparations and a real intention (and ability) to bring group actions. Entry for entry’s sake makes little sens and only entails additional obligations 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 qualified entity ex officio would be only the Financial Ombudsman, which may only act on behalf of a specific group of consumers (in cases for customers of a financial market entity within the meaning of Article 2(1) of the Act of 5th August 2015 on the handling of complaints by financial market entities, on the Financial Ombudsman and the Financial Education Fund, and in cases arising from a contract for the provision of services or the performance of activities for a natural person by a financial institution within the meaning of Article 4(4) of the Act of 5th August 2015 on macroprudential supervision of the financial system and crisis management in the financial system). Thus other consumers are, in a sense, “disadvantaged” by the lack of a “public” qualified entity that could act in their interests.
Qualified entities entitled to bring cross-border actions designated in other Member States
However, in recent months, one can observe increased interest of entities from other Member States in acting as a qualified entity entitled to bring cross-border actions.
The list of qualified entities entitled 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, qualified entities must first be registered.
In the list maintained by the European Commission are included both – consumer organizations and public entities:
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.
Summary
Looking at the entries in the list maintained by the European Commission, it can be hypothesized that the institution of the qualified 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 UOKiK 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
