Disclosure Duties
European Union (Consumer Information, Cancellation and Other Rights) Regulations
I, RICHARD BRUTON, Minister for Jobs, Enterprise and Innovation, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 (No. 27 of 1972) and for the purpose of giving effect to Directive 2011/83/EU of the European Parliament and of the Council of 25 October 20111 , hereby make the following regulations:
PART 1
Preliminary Matters
Citation and Commencement
1. (1) These Regulations may be cited as the European Union (Consumer Information, Cancellation and Other Rights) Regulations 2013.
(2) These Regulations come into operation on 13 June 2014 and apply to contracts concluded after that date.
Interpretation
2. (1) In these Regulations—
“Act of 1893” means the Sale of Goods Act 1893 (1893, c. 71);
“Act of 1980” means the Sale of Goods and Supply of Services Act 1980 (No. 16 of 1980);
“Act of 2002” means the Communications Regulation Act 2002 (No. 20 of 2002);
“Act of 2007” means the Consumer Protection Act 2007 (No. 19 of 2007);
“Agency” means the National Consumer Agency;
“authorised officer” means a person appointed under—
(a) section 39 of the Act of 2002, or
(b) section 30 of the Act of 2007;
“business premises” means—
(a) any immovable retail premises where a trader carries out his or her activity on a permanent basis, or
(b) any movable retail premises where a trader carries out his or her activity on a usual basis;
“commercial guarantee” means any undertaking by a trader or producer to a consumer (in addition to the trader’s legal obligation to supply goods in conformity with the contract) to reimburse the price paid or to replace, repair or service goods in any way if they do not meet the specifications or any other requirements not related to conformity set out in the guarantee statement or in the relevant advertising available at or before the conclusion of the contract;
“Commission” means the Commission for Communications Regulation;
“consumer” means a natural person who is acting for purposes which are outside the person’s trade, business, craft or profession;
“digital content” means data which are produced and supplied in digital form;
“Directive” means Directive 2011/83/EC of the European Parliament and of the Council of 25 October 2011;
“distance contract” means a contract concluded between a trader and a consumer under an organised distance sales or service-provision scheme without the simultaneous physical presence of the trader and the consumer, and with the exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded;
“district heating” means the supply of heat (in the form of steam, hot water or otherwise) to multiple buildings from a central source of production through a transmission and distribution system for the purposes of heating;
“durable medium” means any medium, including paper and e-mail, that—
(a) enables its recipients to store information addressed personally to them in a way accessible for future reference for a period of time adequate for the purposes of the information, and
(b) allows the unchanged reproduction of the stored information;
“financial service” means any service of a kind normally provided in the ordinary course of carrying on a banking business, an insurance business or a business of providing credit, personal pensions, an investment service or a payment service;
“functionality” in relation to digital content includes region coding, restrictions applied for the purpose of protecting digital rights and other technical restrictions;
“gambling” means wagering a stake with pecuniary value in games of chance, including lotteries, casino games and betting transactions;
“goods” means any tangible movable items with the exception of items sold by way of execution or otherwise by authority of law, and includes gas, water and electricity put up for sale in a limited volume or a set quantity;
“healthcare” means health services provided by health professionals to patients in order to assess, maintain or restore their state of health, whether or not these services are provided via healthcare facilities, and includes the prescription, dispensing and provision of medicinal products and medical devices;
“off-premises contract” means each of the following contracts between a trader and a consumer:
(a) a contract concluded in the simultaneous physical presence of the trader and the consumer in a place which is not the business premises of the trader;
(b) a contract for which an offer was made by the consumer in the simultaneous physical presence of the trader and the consumer in a place which is not the business premises of the trader;
(c) a contract concluded on the business premises of the trader or through any means of distance communication immediately after the consumer was personally and individually addressed in a place which is not the business premises of the trader in the simultaneous physical presence of the trader and the consumer;
(d) a contact concluded during an excursion organised by the trader with the aim or effect of promoting and selling goods or services to the consumer;
“on-premises contract” means a contract between a trader and a consumer which is not a distance contract or an off-premises contract;
“passenger transport services” means services for the conveyance of passengers by air, rail, road, sea or waterway, but excludes car rental services;
“public auction” means a method of sale under which—
(a) goods or services are offered by the trader through a transparent, competitive bidding procedure run by an auctioneer to consumers who attend, or are given the possibility to attend, the auction in person, and
(b) the successful bidder is bound to purchase the goods or services;
“sales contract” means a contract under which a trader transfers or undertakes to transfer the ownership of goods to a consumer and the consumer pays or undertakes to pay the price thereof, and includes a contract that has as its object both goods and services;
“service contract” means a contract, other than a sales contract, under which a trader supplies or undertakes to supply a service to a consumer and the consumer pays or undertakes to pay the price thereof, but excludes contracts for the supply of—
(a) digital content not supplied on a tangible medium,
(b) water, gas or electricity not supplied in a limited volume or set quantity, and
(c) district heating;
“social services” includes services related to social housing, childcare and the support of families and persons permanently or temporarily in need, including long-term care;
“trader” means—
(a) a natural person, or
(b) a legal person, whether—
(i) privately owned,
(ii) publicly owned, or
(iii) partly privately owned and partly publicly owned,
who is acting for purposes related to the person’s trade, business, craft or profession, and includes any person acting in the name, or on behalf, of the trader.
(2) A word or expression used in these Regulations that is also used in the Directive has, unless the context otherwise requires, the same meaning in these Regulations as it has in the Directive.
(3) A court shall construe these Regulations in a manner that gives effect to the Directive, and for this purpose the court shall have regard to the provisions of the Directive, including its preambles.
Application of Regulations
3. (1) Subject to paragraphs (2) and (5) and Regulations 4, 6, 13, 24, 28 and 32, these Regulations apply to each of the following contracts concluded between a trader and a consumer:
(a) sales contracts, including—
(i) contracts for the supply of digital content on a tangible medium, and
(ii) contracts for the supply of water, gas, or electricity in a limited volume or set quantity;
(b) service contracts;
(c) contracts for the supply of digital content not supplied on a tangible medium;
(d) contracts for the supply of electricity, gas, or water not supplied in a limited volume or set quantity;
(e) contracts for the supply of district heating.
(2) These Regulations do not apply to any of the following contracts concluded between a trader and a consumer:
(a) contracts for social services;
(b) contracts for healthcare;
(c) contracts for gambling;
(d) contracts for financial services;
(e) contracts for the creation, acquisition or transfer of immovable property or of rights in immovable property;
(f) contracts for the construction of new buildings or the substantial conversion of existing buildings;
(g) contracts for rental of accommodation for residential purposes;
(h) contracts within the scope of Council Directive 90/314/EEC2 ;
(i) contracts within the scope of Directive 2008/122/EC of the European Parliament and of the Council3 ;
(j) contracts established, in accordance with the law of a Member State, by a public office-holder who has a statutory duty to be independent and impartial and who must ensure, by providing comprehensive legal information, that the consumer only concludes the contract on the basis of careful legal consideration and with knowledge of its legal scope;
(k) contracts for the supply of foodstuffs, beverages or other goods intended for current consumption in the household which are physically supplied by the trader on frequent and regular rounds to the consumer’s home, residence or workplace;
(l) contracts concluded by means of automatic vending machines or automated commercial premises;
(m) contracts concluded with a telecommunications operator through a public pay telephone for the use of the telephone;
(n) contracts concluded for the use of one single connection by telephone, Internet or fax established by a consumer.
(3) Paragraph (2)(d) is subject to Regulation 23(6) (ancillary contracts) and Regulation 24(3) (application of Part 5).
(4) For the purposes of subparagraph 2(j), “Member State” means a state that is a member of the European Union (within the meaning of the European Communities Act 1972 (No. 27 of 1972)) or a state that is a party to the agreement on the European Economic Area signed at Oporto on 2 May 1992, as adjusted by the protocol done at Brussels on 17 March 1993.
(5) These Regulations do not apply to off-premises contracts for which the payment to be made by the consumer does not exceed €50.
(6) Where two or more off-premises contracts with related subjects are concluded between a trader and a consumer at the same time, the total cost of the contracts is to be taken into account in applying the monetary threshold specified in paragraph (5).
PART 2
Consumer Information for On-Premises Contracts
Application of Part 2
4. Subject to Regulation 3, this Part applies to each of the following on-premises contracts concluded between a trader and a consumer:
(a) sales contracts;
(b) service contracts other than contracts for passenger transport services;
(c) contracts for the supply of digital content not supplied on a tangible medium;
(d) contracts for the supply of water, gas or electricity not put up for sale in a limited volume or set quantity;
(e) contracts for the supply of district heating.
Information requirements for on-premises contracts
5. (1) Before the consumer is bound by an on-premises contract, the trader shall provide the consumer with the information specified in Schedule 1 in a clear and comprehensible manner, if that information is not already apparent from the context.
(2) Paragraph (1) does not apply to contracts which involve day-to-day transactions and which are performed immediately at the time of the conclusion of the contract.
(3) A trader who contravenes paragraph (1) commits an offence.
PART 3
Consumer Information for Off-Premises Contracts and Distance Contracts
Application of Part 3
6. (1) Subject to paragraph (2) and Regulation 3, this Part applies to each of the following distance contracts and off-premises contracts concluded between a trader and a consumer:
(a) sales contracts;
(b) service contracts;
(c) contracts for the supply of digital content not supplied on a tangible medium;
(d) contracts for the supply of water, gas or electricity not put up for sale in a limited volume or set quantity;
(e) contracts for the supply of district heating.
(2) Except for Regulation 11, this Part does not apply to contracts for passenger transport services.
(3) In case of dispute, it is for the trader to show compliance with the information requirements laid down in this Part.
Information requirements for off-premises contracts
7. (1) Subject to Regulation 8, before the consumer is bound by an off-premises contract or any corresponding offer, the trader—
(a) shall provide the consumer with the information specified in Schedule 2 in a clear and comprehensible manner, and
(b) where a right to cancel the contract exists, shall provide the consumer with the model cancellation form set out in Part B of Schedule 3.
(2) The information specified in paragraphs (l) to (n) of Schedule 2 may be provided by means of the instructions on the right to cancel set out in Part A of Schedule 3, and a trader who correctly supplies those instructions fulfils the obligations of paragraph (1) in respect of those paragraphs.
(3) In the case of a public auction, the information specified in paragraphs (b) to (e) of Schedule 2 may be replaced by the equivalent details for the auctioneer.
(4) The information referred to in paragraph (1)(a)—
(a) shall be given on paper or, if the consumer agrees, on another durable medium,
and
(b) shall be legible and in plain intelligible language.
(5) The cancellation form referred to in paragraph (1)(b) shall be given on paper, or if the consumer agrees, on another durable medium, and be legible.
(6) The information referred to in paragraph (1) forms part of the contract and shall not be altered without the express agreement of the trader and the consumer.
(7) If the trader has not complied with paragraph (1) in respect of paragraphs (g) and (m) of Schedule 2, the consumer is not liable for the charges or costs specified in those paragraphs.
(8) A trader who contravenes paragraph (1) commits an offence.
Information requirements for off-premises contracts for repairs or maintenance
8. (1) Subject to paragraphs (2) and (3), Regulation 7 does not apply to an off-premises contract where—
(a) the consumer has explicitly requested the services of the trader for the purpose of carrying out repairs or maintenance,
(b) the trader and the consumer immediately perform their obligations under the contract, and
(c) the payment to be made by the consumer does not exceed €200.
(2) In the case of an off-premises contract referred to in paragraph (1), the trader shall provide the consumer with—
(a) the information specified in paragraphs (a) to (d), (f), (l) and (o) of Schedule 2,
(b) where a right to cancel the contract exists, the model cancellation form set out in Part B of Schedule 3, and
(c) all of the information required by Regulation 7(1) in the confirmation of the contract to be provided by the trader in accordance with Regulation 9.
(3) The trader shall provide the information specified in paragraphs (b) to (d) and (f) of Schedule 2 on paper or, if the consumer agrees, on another durable medium.
(4) If the consumer expressly agrees, the information specified in paragraphs (a), (l) and (o) of Schedule 2 does not have to be provided by the trader on paper or another durable medium.
(5) A trader who contravenes paragraph (2) commits an offence.
Provision of copy or confirmation of off-premises contracts
9. (1) A trader who concludes an off-premises contract with a consumer shall provide the consumer with a copy of the signed contract or with confirmation of the contract.
(2) The copy or confirmation of the contract shall be provided on paper or, if the consumer agrees, on another durable medium.
(3) Where applicable, the copy or the confirmation of the contract provided by the trader shall include the confirmation of the consumer’s acknowledgement in accordance with Regulation 13(2)(b) of the loss of the right to cancel the contract in the case of digital content not supplied on a tangible medium where the performance has begun with the consumer’s prior express consent.
(4) A trader who contravenes a provision of this Regulation commits an offence.
Information requirements for distance contracts
10. (1) Before the consumer is bound by a distance contract, the trader—
(a) shall give or make available to the consumer the information specified in Schedule 2 in plain and intelligible language and in a way appropriate to the means of distance communication used,
(b) where a right to cancel the contract exists, shall give or make available to the consumer the cancellation form set out in Part B of Schedule 3.
(2) The information specified in paragraphs (l) to (n) of Schedule 2 may be provided by means of the instructions on cancellation set out in Part A of Schedule 3, and a trader who correctly supplies those instructions fulfils the obligations of paragraph (1) in respect of those paragraphs.
(3) In the case of a public auction, the information specified in paragraphs (b) to (e) of Schedule 2 may be replaced by the equivalent details for the auctioneer.
(4) Where the information required by paragraph (1)(a), or the cancellation form referred to in paragraph (1)(b), is provided on a durable medium, it shall be legible.
(5) The information referred to in paragraph (1) forms part of the contract and shall not be altered without the express agreement of the trader and the consumer.
(6) If the trader has not complied with paragraph (1) in respect of paragraphs (g) and (m) of Schedule 2, the consumer is not liable for the charges or costs specified in those paragraphs.
(7) Where a distance contract is concluded through means of distance communication which allows limited space or time to display the information, the trader—
(a) shall provide the information specified in paragraphs (a), (b), (f), (l) and (s) of Schedule 2 on that means of communication in accordance with paragraphs (1) and (2), and
(b) shall provide the other information specified in Schedule 2 in an appropriate way in accordance with paragraphs (1) to (4).
(8) Without prejudice to paragraph (7), a trader who makes a telephone call to the consumer with a view to concluding a distance contract shall, at the beginning of that call, disclose—
(a) the trader’s identity,
(b) where applicable, the identity of the trader on whose behalf the trader makes the call, and
(c) the commercial purpose of the call.
(9) Where distance contracts are concluded through a trading website, the trader shall ensure that the website indicates clearly and legibly, and at the latest at the beginning of the ordering process, whether any delivery restrictions apply and which means of payment are accepted.
(10) A trader who contravenes paragraph (1), paragraph (7), paragraph (8) or paragraph (9) commits an offence.
Additional information requirements for distance contracts concluded by electronic means
11. (1) Subject to Regulation 3, this Regulation applies to distance contracts concluded by electronic means.
(2) If the contract places the consumer under an obligation to pay, the trader shall make the consumer aware in a clear and prominent manner, and directly before the consumer places his order, of the information specified in paragraphs (a), (f) to (h), (s) and (t) of Schedule 2.
(3) The trader shall ensure that the consumer, when placing an order, explicitly acknowledges that the order implies an obligation to pay.
(4) If placing an order under paragraph (3) entails activating a button or a similar function, the trader shall ensure that the button or similar function is labelled in an easily legible manner only with the words ‘order with obligation to pay’ or a corresponding unambiguous formulation indicating that the order entails an obligation to pay the trader.
(5) If the trader has not complied with paragraph (3) and, where applicable, paragraph (4), the consumer is not bound by the contract or order.
(6) A trader who contravenes paragraph (2), paragraph (3) or paragraph (4) commits an offence.
Provision of confirmation of distance contracts
12. (1) A trader who concludes a distance contract with a consumer shall provide the consumer with confirmation of the concluded contract on a durable medium.
(2) The confirmation shall include all of the information specified in Schedule 2 unless the trader has already provided that information to the consumer on a durable medium prior to the conclusion of the contract.
(3) Where applicable, the confirmation shall include the confirmation of the consumer’s acknowledgement in accordance with Regulation 13(2)(b) of the loss of the right to cancel the contract in the case of digital content not supplied on a tangible medium where the performance has begun with the consumer’s prior express consent.
(4) The confirmation required by paragraph (1) shall be provided within a reasonable time after the conclusion of the contract and at the latest—
(a) at the time of the delivery of the goods, or
(b) before performance begins of—
(i) a service,
(ii) a supply of digital content not supplied on a tangible medium,
(iii) a supply of gas, electricity or water not supplied in a limited volume or set quantity, or
(iv) a supply of district heating.
(5) A trader who contravenes a provision of this Regulation commits an offence.
SCHEDULE 1
INFORMATION TO BE PROVIDED PRIOR TO CONCLUSION OF ON-PREMISES CONTRACT
The information to be provided by the trader to the consumer in accordance with Regulation 5(1) is as follows:
(a) the main characteristics of the goods or services, to the extent appropriate to the medium and to the goods or services;
(b) the identity of the trader, including the trader’s trading name and legal identity;
(c) the geographical address at which the trader is established, and the trader’s telephone number;
(d) the total price of the goods or services inclusive of taxes, or where the nature of the goods or services is such that the price cannot reasonably be calculated in advance, the manner in which the price is to be calculated;
(e) where applicable, all freight, delivery or postal charges additional to the price referred to in paragraph (d) or, where those charges cannot reasonably be calculated in advance, the fact that such charges may be payable;
(f) where applicable, the arrangements for payment, delivery, performance, and the time by which the trader undertakes to deliver the goods or perform the service;
(g) where applicable, the trader’s complaint handling policy;
(h) in the case of a sales contract, the existence of a legal obligation on the trader to supply goods that are in conformity with the contract;
(i) where applicable, the existence and the conditions of after-sales services and commercial guarantees;
(j) the duration of the contract where applicable or, if the contract is of indeterminate duration or is to be extended automatically, the conditions for terminating it;
(k) where applicable, the functionality, including applicable technical protection measures, of digital content;
(l) where applicable, any relevant interoperability of digital content with hardware and software of which the trader is, or can reasonably be expected to have been, aware.
SCHEDULE 2
INFORMATION TO BE PROVIDED PRIOR TO CONCLUSION OF OFF-PREMISES CONTRACTS AND DISTANCE CONTRACTS
The information to be provided by the trader to the consumer in accordance with Regulation 7 in the case of off-premises contracts, Regulation 8 in the case of off-premises contracts for repairs or maintenance within the scope of that Regulation and Regulation 10 in the case of distance contracts, is as follows:
(a) the main characteristics of the goods or services, to the extent appropriate to the medium and to the goods or services;
(b) the identity of the trader, including the trader’s trading name;
(c) if the trader is acting on behalf of another trader, the geographical address and identity of that trader;
(d) the geographical address at which the trader is established, and the trader’s telephone number, fax number and e-mail address, where available, to enable the consumer to contact the trader quickly and communicate with the trader efficiently;
(e) the geographical address of—
(i) the place of business of the trader, if different from the address provided in accordance with paragraph (d), and
(ii) where the trader acts on behalf of another trader, the place of business of that other trader, if different from the address provided in accordance with paragraph (c),
to which the consumer can address complaints;
(f) the total price of the goods or services inclusive of taxes, or where the nature of the goods or services is such that the price cannot reasonably be calculated in advance, the manner in which the price is to be calculated;
(g) where applicable, all additional freight, delivery or postal charges and any other costs or, where those charges cannot reasonably be calculated in advance, the fact that such charges may be payable;
(h) in the case of a contract of indeterminate duration or a contract containing a subscription—
(i) the total costs per billing period, or,
(ii) where such contracts are charged at a fixed rate, the total monthly costs, or
(iii) where the total costs cannot reasonably be calculated in advance, the manner in which the price is to be calculated;
(i) the cost of using the means of distance communication used for the conclusion of the contract where that cost is calculated other than at the basic rate;
(j) the arrangements for payment, delivery, performance, and the time by which the trader undertakes to deliver the goods or perform the service;
(k) where applicable, the trader’s complaint handling policy;
(l) where a right to cancel exists, the conditions, time limit and procedures for exercising that right in accordance with Regulation 17.
(m) where applicable, that the consumer will have to bear the cost of returning the goods in case of cancellation of the contract and, in the case of distance contracts, if the goods by their nature cannot normally be returned by post, the cost of returning the goods;
(n) where the consumer exercises the right to cancel after having made a request in accordance with Regulation 21, that the consumer is liable to pay the trader reasonable costs in accordance with that Regulation;
(o) where a right to cancel the contract does not apply under Regulation 13, the information that the consumer will not benefit from that right or, where applicable, the circumstances in which the consumer loses the right;
(p) in the case of a sales contact, the existence of a legal obligation on the trader to supply goods that are in conformity with the contract;
(q) where applicable, the existence and conditions of after-sale customer assistance, after-sales services and commercial guarantees;
(r) the existence of relevant codes of practice, as defined in section 2 of the Consumer Protection Act 2007 and, where applicable, how copies of such codes can be obtained;
(s) the duration of the contract where applicable or, if the contract is of indeterminate duration or is to be extended automatically, the conditions for terminating it;
(t) where applicable, the minimum duration of the consumer’s obligations under the contract;
(u) where applicable, the existence and the conditions of deposits or other financial guarantees to be paid or provided by the consumer at the request of the trader;
(v) where applicable, the functionality, including applicable technical protection measures of digital content;
(w) where applicable, any relevant interoperability of digital content with hardware and software of which the trader is, or can reasonably be expected to have been, aware.
(x) where applicable, the possibility of having recourse to an out-of-court complaint and redress mechanism to which the trader is subject, and the methods for having access to it.