Prior to the implementation of the Directive by Act No. 179/2024 Coll. on Collective Civil Court Proceedings (the “Collective Proceedings Act”) and Act No. 180/2024 Coll. on the Amendment of Certain Laws in Relation to the Adoption of the Collective Proceedings Act (the “Ancillary Act”) which both came into effect on 1 July 2024, the Czech legal system only contained only very limited mechanisms for representative actions. These were restricted to consumer protection and unfair competition claims, where consumer protection organizations could file actions for injunctive relief against businesses on behalf of all consumers, rather than a defined group. This mechanism was established following the transposition of Directive 2009/22/EC of 23 April 2009 on injunctions for the protection of consumers' interests. Notably, filing claims for damages was not an option under this mechanism. Another mechanism resembling representative actions concerned claims for damages or adequate consideration arising in connection with mandatory takeover bids or squeeze-outs. This mechanism established a lis pendens obstacle for any similar claims of other minority shareholders, with the final decision on the claim being binding in relation to other shareholders’ claims.

The implementation of the Directive, therefore, introduced a distinct new mechanism for representative actions.

A general observation regarding the transposition of the Directive is that the Czech legislator adopted a relatively minimalist approach, largely adhering to the minimum requirements set out by the Directive. However, there are certain areas where the Czech legislator went beyond these minimum requirements. For example, the definition of consumers who can become group members under the Collective Proceedings Act was expanded to include small businesses with fewer than 10 employees and an annual turnover not exceeding CZK 50,000,000 (EUR 2,000,000). Furthermore, the Collective Proceedings Act applies to any infringement of consumer-related laws, not just those listed in Annex I of the RAD.

Both the previous and current representative action mechanisms are only applicable in civil court proceedings, not in administrative proceedings.

Representative actions under the new legislation implementing the RAD can be divided into two main types of proceedings. Collective proceedings under the Collective Proceedings Act where a claim of a particular group of individuals (and/or small businesses) is raised against the defendant and proceedings on the protection of collective consumer interests introduced by the Ancillary Act which do not concern the rights of any defined group, but, as the name indicates, the collective interests of all consumers.

Claims under the Collective Proceedings Act

Under Section 2(a) of the Collective Proceedings Act, a collective action can be initiated by "a claimant seeking to enforce an obligation or to determine whether a legal relationship or right exists or not."

Claims to enforce an obligation can seek both injunctive and redress measures, such as actions to cease practice or to provide remedies like compensation, replacement, price reduction, or reimbursement.

Claims to determine whether a legal relationship or right exists are claims for declaratory relief, which can lead to contract termination or annulment.

Qualified entities authorized to file representative actions can also file motions for preliminary or interim injunctions before the submission of the representative action.

Claims under the Ancillary Act

The Ancillary Act contains an amendment to Act No. 99/1963 Coll, the Code of Civil Procedure (the “CCP”), introducing new Sections 181 to 194 of the CCP regarding proceedings on claims for the protection of collective consumer interests Under this amendment, a qualified entity may seek provisional or definitive injunctive measures to halt a practice or measures establishing that a practice constitutes an infringement of a legal obligation. This mechanism is similar to the previously available representative actions for consumer protection and unfair competition claims, as it is filed on behalf of all consumers without their direct or indirect involvement and without defining a specific group.

Costs of collective proceedings are governed by the general rules applicable to all civil proceedings. These follow from Ministry of Justice Decree No 177/1996 Coll., on Determining Fees of Attorneys and Notaries for Providing Legal Services (the “Attorney’s Tariff”). The Attorney’s Tariff specifies a fee for each act of legal service (such as drafting a submission, attending a hearing, etc.) that is calculated based on the amount in dispute.

The general rule is that the losing party bears all costs of the proceedings, including its own costs as well as those of the successful party. If a party only partially succeeds, the costs may be divided proportionally between the parties, no party may be entitled to reimbursement, or the winning party may be awarded full reimbursement (if it was unsuccessful in only a minor part of the dispute).

The Collective Proceedings Act contains a few specific rules, such as allowing a particular group member to be ordered to pay the costs of collective proceedings if those costs were caused by that group member's fault and would not have otherwise arisen.

A potential concern for defendants is the uncertainty about whether all qualified entities that may become claimants in collective proceedings will have sufficient funds to reimburse the defendants’ costs if they do not succeed. The current legislation provides no safeguards in this respect; qualified entities are not required at any stage to prove they have sufficient funds.

An important point regarding the costs of proceedings is that qualified entities are fully exempt from the obligation to pay court fees for all representative actions. This exemption was introduced as an incentive for qualified entities who may be reluctant or unable to pay court fees, which can be as high as CZK 4,100,000 per claim.

Transitional provisions contained in Section 92 of the Collective Proceedings Act set out the following rules:

1. Disputes concerning rights or legitimate interests that arose after 24 November 2020, can be heard and decided under this law.
2. Individual proceedings initiated before 25 June 2023, shall be completed in accordance with the existing legal regulations; Section 28, Subsection 2, does not apply.

The Czech legislator decided to limit the applicability of the Collective Proceedings Act only to infringements that occurred after the introduction of the Directive. Individual claimants who filed claims after 25 June 2023 were given the opportunity to join collective proceedings initiated under the Collective Proceedings Act. In accordance with the general principles of Czech civil procedure, collective proceedings can only be initiated after the Collective Proceedings Act came into effect.

The new wording of Section 194 of the CCP introduced by the Ancillary Act provides the following rule on the suspension of limitation periods: "During the proceedings of a lawsuit for the protection of collective consumer interests, the statute of limitations does not run for the rights of consumers affected by this lawsuit that arose from unlawful conduct or circumstances. If the statute of limitations resumes after the obstacle is removed, it shall not expire sooner than six months from the day it starts running again.”

The effect of this provision is that if, for example, a representative action for the protection of collective consumer interests is brought seeking to determine that an infringement of law occurred, limitation periods shall not run for the duration of these proceedings in relation to potential subsequent individual or collective damages claims.

Pursuant to Article II. (4) of the Ancillary Act, the new Section 194 of the CCP shall only apply to claims arising from infringements that occurred on 25 June 2023 or later.

The Czech legislator decided to only introduce the opt-in mechanism in the Collective Proceedings Act.

There have been proposals to also include an opt-out regime e.g. for small claims under CZK 10,000 (EUR 400) per group member, but these did not succeed.

The criteria for qualified entities were introduced by the Ancillary Act containing an amendment of Act No. 634/1992 Coll. On the Protection of Consumers (the "Consumer Protection Act”) and essentially resemble the criteria set out in Article 4 (3) of the Directive.

According to the new Section 25a of the Consumer Protection Act:

"The Ministry of Industry and Trade shall register a legal entity in the Czech list of qualified entities if:

1. "it was established in accordance with the legal regulations of the Czech Republic,
2. it has been actively operating in the field of consumer interest protection for at least 12 months,
3. its purpose, as demonstrated by the founding legal act, shows that it has a legitimate interest in the protection of consumer interests,
4. it was not established for the purpose of generating profit,
5. no bankruptcy decision has been issued against it,
6. it is independent and not influenced by other persons with an economic interest in filing a representative action, except for consumers, and it has established procedures to prevent such influence as well as conflicts of interest between its own interests, the interests of any potential funder, and the interests of consumers, and
7. it informs the public in a simple and understandable manner on its website about the facts demonstrating compliance with the conditions set out in points a) to f), its general sources of funding, its organizational and membership structure, and its purpose and activities."

As of 5 September 2024, there are two qualified entities in the list and registration proceedings are currently pending regarding a third entity who filed an application recently.

Pursuant to Section 15 of the Collective Proceedings Act:

"A collective action is admissible if:

1. the claimant meets the condition under Section 8 (1) – i.e. that it is a qualified entity registered in the list maintained by the Ministry of Industry and Trade.,
2. the claimant acts in the interest of the group and is not in a conflict of interest,
3. the group has at least 10 members,
4. the asserted rights or legitimate interests of the group members are based on a similar factual and legal basis,
5. it was not filed with an abusive intent,
6. it is not financed by a third party who is a competitor of the defendant, is dependent on the defendant, or who unduly influences the claimant in a way that would harm the interests of the group."

Since the collective action mechanism is new to Czech law, it remains to be seen what approach Czech courts will take in relation to the assessment of similarity. According to the definition contained in Section 2 of the Collective Proceedings Act, "similar factual and legal basis means decisive facts that are either identical same or sufficiently similar to make it practical for the rights or legitimate interests based on these decisive facts to be heard and decided in collective proceedings". This definition gives judges relative freedom in assessing and deciding whether or not certain claims are sufficiently similar. At the same time, Czech judges should follow CJEU's decision-making practice.

Third-party litigation funding of representative actions is primarily regulated by the requirement for admissibility set out in Section 15 (f) of the Collective Proceedings Act, i.e. that the claimant is not financed by a third party who is a competitor of the defendant, is dependent on the defendant, or who unduly influences the claimant in a way that would harm the interests of the group as well as the requirements under b) and e) to act in the group's interest and without an abusive intent.

Pursuant to Sections 57 et seq. of the Collective Proceedings Act, the court shall, upon the defendant’s request or from its own initiative (if there are doubts), order the claimant to disclose sources of funding. If the sources of funding include legal entities, the court shall investigate who is the ultimate beneficial owner.

If the court finds any indications that the conditions with respect to the litigation funder are not satisfied the court shall invite the claimant to reject the funds or make changes to the sources of these funds within a reasonable period.

It may remain questionable whether a claimant who will be found to have already accepted litigation funding from the defendant’s competitor or a party dependent on the defendant can be simply cleared of any doubts by subsequently, upon the court’s order, rejecting such funds. In such cases, the court may still conclude that the conditions for admissibility set out in Section 15 b), e) or f) of the Collective Proceedings Act are not satisfied and decide to terminate the proceedings.

Although the initial proposal in the legislative process was to give group members the option to accept or refuse a settlement negotiated by the qualified entity on the group’s behalf, it was finally decided to only allow individual group members to raise objections against a settlement proposal within 15 days after it has been published. However, if the court approves the settlement, having assessed and concluded in accordance with Section 52 of the Collective Proceedings Act that:

1. the claimant, in the course of negotiations, represented the interests of the group with due care,
2. the settlement proposal was not negotiated in a manner that raises doubts about the mutual independence or non-affiliation of the claimant and the defendant,
3. the right or legitimate interest granted to the participating group members in the settlement proposal is fair, considering:
   1. the costs, risks, and duration of the class action,
   2. the effectiveness of the method for settling the rights of the participating group members, and
   3. the amount of any proposed compensation for the claimant and the method of its payment,
4. the settlement proposal treats the same or similar rights or legitimate interests of the participating group members in an equivalent manner”
   all individual group members are bound by that settlement.

Pursuant to Section 84 et seq. of the Collective Proceedings Act, the claimant is obligated to publish information regarding the initiation and course of the collective proceedings in a manner determined by the court in the decision on the admissibility of the collective action. The claimant is also required to publish information about the collective proceedings on their website.

The court will determine the method, scope, and form of publication to ensure the highest possible level of awareness among all members of the group, including potential members who do not reside in the Czech Republic, while also respecting the rights of the defendant. This may include publication in national or local media, radio and television broadcasts, other websites, etc. Where possible, the court may require the claimant to notify the group members individually.

In accordance with Section 86 of the Collective Proceedings Act, the Ministry of Justice of the Czech Republic shall establish a register of collective proceedings, where all relevant information on collective proceedings, as required by the Act, will be published.

According to Section 87 (2) of the Collective Proceedings Act:

"At least the following information shall be published in the register:

1. case number of the collective proceedings,
2. designation of the court competent to hear the collective proceedings,
3. identification details of the parties, and where applicable, also their legal representatives,
4. subject matter of the collective proceedings and the factual basis of the collective action,
5. criteria for membership in the group,
6. date on which the collective action was filed,
7. date on which the collective proceedings on the merits were initiated, i.e. when the collective claim was admitted, and
8. other documents that are required to be published in the register of collective proceedings either by law or by a court decision.”

The Decree governing the establishment and operation of the collective proceedings register has not been adopted yet. The Ministry of Justice has already set up a website that should contain information about pending collective proceedings, however, this website contains no information so far.

The extent of implementing Article 18 of the RAD, which requires Member States to ensure that the court may order the defendant or a third party to disclose evidence identified by the claimant, was also a key topic during the legislative process. While the original draft proposed broader disclosure principles, more closely aligned with the discovery process in common law systems, the rule adopted in Section 60 of the Collective Proceedings Act aligns with existing Czech procedural rules. It limits evidence disclosure to the production of specific evidence (documents or items) that must be sufficiently identified by the requesting party.

If a party fails to produce the required evidence without a valid excuse, the facts asserted by the opposing party will be considered proven, and the non-compliant party may be ordered to pay a fine of up to CZK 5,000,000 (EUR 200,000). This duty to disclose evidence applies to both defendants and claimants, although it is expected to primarily affect defendants. The obligation to disclose evidence does not apply if it would conflict with a statutory confidentiality obligation.

According to the new Section 25 of the Consumer Protection Act, a "qualified entity" that can act as a claimant under the Collective Proceedings Act is an entity listed on either the list of qualified entities maintained by the European Commission or the list maintained by the Ministry of Industry and Trade. Consequently, qualified entities from other member states that are on the European list are also permitted to file collective claims in the Czech Republic.

So far, no specific rules regarding outstanding (uncollected) redress funds have been adopted. This may be because the Act on Collective Proceedings only recognizes opt-in proceedings, where such situations are less likely to occur.

Not applicable.