Slovakia
Implementation of the European Directive on representative actions
Which national regulations transpose the Directive into national law?
The Directive on Representative Actions is transposed into Slovak law by the Act No. 261/2023 Coll. on Actions to Protect Collective Consumer Interests (Zákon č. 261/2023 Z. z. o žalobách na ochranu kolektívnych záujmov spotrebiteľov a o zmene a doplnení niektorých zákonov). The pertinent act entered into effect on 25 July 2023.
Who is entitled to bring a representative action?
Only certain qualified entities may bring a representative action. They must be registered by the Ministry of Economy of the Slovak Republic in a dedicated list of eligible persons. For instance, only legal entities active in the non-profit sector in the field of the consumer protection may be included in the list. In addition to that, they have to i. a. demonstrate that they adopted measures to eliminate conflict of interests and to preclude its standing to sue from being influenced by economic interests diverting representative action from protection of collective interests.
Qualified entities from other EU Member States can bring actions in the Slovak Republic under similar conditions. In general, initiation of a lawsuit does not preclude other entities from filing actions in the same subject matter.
Public authorities with competencies in the field of consumer protection might also bring representative action under certain conditions.
What can be the subject matter of a representative action?
Consumers that suffered harm as a result of violation of consumer protection laws, have the right to claim redress.
As a first step, a qualified entity shall publish the so-called claim/intent to sue in the Commercial Bulletin issued by the Ministry of Justice of the Slovak Republic at least two months before filing a class action with the court to enable consumers to register their claims with the designated public notary. The registration of at least 20 consumers within above period is a precondition for filing a representative court action.
A qualified entity shall also conclude a contract with a notary to register the interested consumers and, in the case of a favourable result, to satisfy their claims.
Another form of representative action is the so-called abstract control in consumer protection matters. It entails the possibility to bring action to protect collective consumer interests to review either contractual clauses or conduct/practices violating consumer protection laws.
Initiation of a lawsuit shall be preceded by a consultation with a concerned trader. If a violation of consumer protection laws persists within 14 days since the written request for consultation, a lawsuit might be initiated. It is not necessary to demonstrate a direct connection between loss/harm incurred by individual consumers and the intent or negligence of the trader concerned. For this type of the class action there is no need for the individual consumers to register their claims.
Which individual consumers are represented in a representative action?
The consumers that have registered their claims either within 2 month period since the publication of the claim/intent to sue in the Commercial Bulletin or additionally by the end of taking evidence before the first instance court might enforce their redress claims by the means of a court action initiated by qualified entities.
Qualified entities and public authorities with the competencies in the field of consumer protection may also initiate abstract control of consumer protection matters.
What will be the outcome of a representative action?
If a redress claim is successful, court may order the trader concerned a remedial measure, which might entail monetary compensation.
Depending on the context of the case, a court may also order the trader to dissolve a contractual relationship or to remain therein.
If a court finds a contractual condition or business practice inacceptable and violating consumer protection laws, it may prohibit the use of such contractual condition or business practice as well as the conduct violating consumer protection laws.
Are there particular rules for the disclosure of evidence?
A court is not bound only by the evidence submitted by the parties. It may consider and evaluate also other evidence it deems necessary.
If sufficiently substantiated by any of the parties, a court may order the other party or third person to disclose evidence. If the requested evidence is not disclosed or is destroyed, the court may deem such facts as proven without necessity to take evidence in disfavour of the party, that failed to disclose the evidence. A monetary penalty may be imposed if court´s order is not respected.
Is third party funding possible?
Third party funding is not excluded. However, consumer protection organization must adopt measures to ensure its independence and eliminate influence of third parties with economic interest in initiating lawsuit to protect collective consumer interests. The representative action may not be brought against a trader who is a competitor of the financing third party or against a trader on whom the financing third party is dependent.
Conclusion
The possibility to claim redress by the means of a representative action in consumer protection matters is to a certain extent a novelty in the Slovak legal system. However, observers have already disputed whether the Slovak act represents a correct transposition of the Directive on Representative Actions. The Slovak president rejected originally to sign the act because she considered this protection as insufficient (considering registration of the claims and payment of respective fee by at least 20 consumers before the bringing the class action with the court and within short period of two months from publication of the claim/intent with the Commercial Bulletin that is not generally reviewed by the consumers). It remains to be seen, whether the correct transposition of the directive or application in practice will necessitate legislative amendments in the future.
Contact
Bernhard Hager
T: +421 232 786 411 E: bernhard.hager@eversheds-sutherland.sk
Ján Macej
T: +421 232 786 411 E: jan.macej@eversheds-sutherland.sk
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