Cyprus introduces legislation for class actions on consumer claims

Cyprus has introduced new legislation allowing the filing of class actions on consumer claims.  The new law on the Issuance of Court Orders and the Filing of Representative Actions for the Protection of the Collective Interests of Consumers of 2023 was published in the Cyprus Official Gazette on 13 October 2023

The types of consumer representative actions

The legitimated entities have the right to request from the Court to issue a court order, including injunctive relief and/or restitution measures in favor of the affected consumers.

It is noted that the above requests may be contained within a single representative action and the Court has the discretionary power to issue a single decision.

Institutions having the right to initiate consumer representative actions

The representative actions can be brought only by qualified entities. Qualified entities include entities representing members from more than one member state of the EU, may brought internal and/or cross border representative actions. Qualified entities are:

1. Authorities that are responsible for the supervision of the application of the directions of European law.
2. Private entities who meet the criteria provided in subsection (4) of article 4 of this Law.
3. Qualified entities that have been designated by another member state.

It is noted that public entities, that have already been designated as qualified entities according to the definition of article 3 of the Issuance of Court Orders for the Protection of the Collective Interests of Consumers Law of 2007-2021, which are repealed upon the entry into force of this law, are still considered qualified entities for the purposes of this Law.

Limitation

By bringing a representative action as provided in the provisions of Part III of this Law, this suspends the applicable limitations for the consumers that the application referred to, in order to be able to bring a subsequent action for restitution measures in relation to the alleged infringement as provided for in the provisions of subsection 1 of article 2.

Furthermore, by bringing a representative action as provided in the provisions of Part IV of this Law, this suspends the applicable limitations for the consumers that the representative action is referred to.

The suspension period starts from the filing of the application and ends with the issuance of final decision or, regarding the case provided for in the provisions of subsection (4) of article 13, by submitting a declaration of the affected consumer that he does not wish to be represented at trial.

Subject to the provisions of article 7 of this Law, the provisions of the Limitation of Actions Law apply proportionally.

Procedure

The qualified entity, before bringing to the Court a representative action for injunctive measures, shall undertake a prior consultation with the person who commits the infringement, requesting that person the immediate cessation of the infringement and/or not to repeat the infringement:

Provided that the above obligation of prior consultation can be omitted in cases in which the qualified entity, at its discretion, considers that the circumstances are such that the judicial process must proceed without any delay.

If the infringement has not ceased, within fourteen (14) days after the request for consultation is received, the qualified entity should be entitled to request from the Court to issue an injunctive measure according to the provisions of this Law.

For the issuance of an injunctive measure, the qualified entity shall not be required to prove:

1. actual loss or damage on the part of the individual consumers affected by the infringement or
2. intent or negligence on the part of the trader.

When bringing a representative action, the qualified entity shall provide the Court with sufficient information about the consumers concerned by the representative action, which inter alia:

1. should allow the Court to determine whether it has jurisdiction and to determine the applicable law.
2. in a case related to tort, this obligation would involve informing the court where the harmful event affecting the consumers occurred or may occur.
3. in case the Court is requested to order redress and/or restitution measures, include elements that show the similarity or relevance, from factual and legal assessment of the individual claims of the consumers that are affected by the measures in question.

The Court shall assess the admissibility of a specific representative action in accordance with the provisions of this Law, the Courts Law, Civil Procedure Law, and Civil Procedure Rules and order restitution measures.

The Court, before which any application is filed in accordance with the provisions of article 6, has power, in compliance with the provisions of Civil Procedure Law, the Courts Law and the Civil Procedure Procedural Regulations, to issue an order, including an injunctive relief, ordering-

1. the immediate cessation and/or not repetition of the infringement,
2. the publishment of the decision taken by the Court in full or in part, or the publishment of a corrective statement in order to eliminate any continuing effects of the infringement and/or
3. any other act or measure was deemed necessary or reasonable under the circumstances of the specific case:

Provided that, the application for the issuance of an order for immediate cessation and/or non-repetition of the infringement according to paragraph (a) is examined by a summary procedure.

The order issued may:

1. concern the infringement committed against consumers and in general, similar future infringements against consumers and/or
2. relate to or is addressed to any accomplice or participant in the infringement and, in the case of an offender who is a legal person, concerns or addressed to any director and/or managing director and/or partner and/or consultant and/or officer, who is proven to have taken part, participated in, conspired, or was in any way related to the infringement in question.

Restitution Measures

The qualified entities may bring representative actions for restitution measures without requiring prior identification of infringement in the context of separate procedure.

For reasons of ensuring the effective protection of collective interests of consumers, the qualified entity may bring a representative action which will cover all consumers that are affected by the alleged infringement that is the subject of the trial, as long as the consumers do not expressly state that they do not wish to participate in the trial within such reasonable time as the Court may order according to its discretion (representation by implied consent):

Provided that, consumers who do not have their usual residence in the Republic in each case they expressly express their will to be represented in said representative action.

The consumers who are represented in a representative action cannot be represented to other representative actions with the same disputed matter against the same trader, nor to sue for the same dispute matter against the same trader and they cannot receive compensation more than once for the same disputed matter against the same trader.

The court judgement that orders restitution and/or redress measures inter alia clarifies the following:

1. the individual consumers who are entitled to benefit from the ordered remedies or at least the group of consumers entitled to benefit from these∙
2. the time limits within which individual consumers can benefit by restitution and/or redress measures
3. the outcome of any remaining remedial and/or restitution funds which are not recovered within the specified time limits:

Provided that, the Court may order that such funds shall be allocated for public benefit purposes, with priority being given to qualified entities for purposes of protecting the collective interests of consumers.

The remedies provided through restitution and/or redress measures in the context of representative action they do not affect any additional remedies that are available to consumers based on union or national law and were not an object of the said representative action.

The provisions of Courts Law, Civil Procedure Law, and Civil Procedure Rules that apply in relation to filing and adjudication of legal actions, apply mutatis mutandis in relation to the form, drafting, filing and adjudication of the actions that are foreseen in the provisions of article 13 of this Law.

The party against whom the judgment was issued is required to pay the judicial costs which burdened the party that a court judgment is issued in his favor,

Rights to information

The legitimate entities publish information, on their website and in social media, about:

(a) the representative actions they have decided to bring,

(b) the status of the representative actions they have brought, and

(c) the outcomes of the representative actions referred to in points (a) and (b).

The information is published as soon as possible to update the consumers in time.

The competent authority, upon submission of a relevant request by the applicants qualified entities, publicly announces appropriate information about the possibility and manner of participation in imminent and/or pending representative actions.

Without prejudice to the information referred to in paragraphs above, the Court with the issuance of order, following the application of the qualified entity, shall require the trader to inform the consumers concerned by the representative action, at the trader’s expense, of any final decisions providing for the measures referred to in article 13 or any approved settlements as referred to in article 16, by means appropriate to the circumstances of the case and within specific time limits, including, where appropriate, informing all consumers concerned individually.

This obligation shall not apply if the consumers concerned are informed of the final decision or approved settlement in another manner.

The information requirements shall apply mutatis mutandis to qualified entities concerning final decisions on the rejection or dismissal of representative actions for restitution measures.

The Court shall order that the successful party can recover the costs related to providing information to consumers in the context of the representative action, in accordance with the provisions of Civil Procedure Regulations and Civil Procedure Law.

 

By Evangelia Hadjineophytou

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