Enforcement

Enforcement

States must adopt adequate and effective enforcement mechanisms under the Unfair Commercial Practices Directive.  Penalties must be effective, proportionate and dissuasive. The National Consumer Agency, now the Competition and Consumer Protection Commission, may take action on its own initiative or on foot of a complaint.

A trader who engages in misleading commercial practices, aggressive commercial practices or other prohibited commercial practices is guilty of an offence.  He may be prosecuted summarily or an indictment. The prosecution must generally be brought within two years of the alleged commission of the offence.

It is a defence for a trader, other than in the case of pyramid selling, to prove that the commission of the offence was

  • due to a mistake or reliance on information supplied to the accused,
  • due to the act or default of another person,
  • due to an accident or some other cause beyond the accused’s control and that the accused exercised due diligence and took all reasonable precautions to avoid the commission of the offence.

Policing Powers

The Commission has extensive policing and investigative powers. It may enforce breaches of consumer protection legislation by way of administrative fines and orders or by way of criminal proceedings. Most offences are prosecuted in the District Court. It may refer more serious cases to the DPP for possible prosecution on indictment.

The Agency, now the Commission, took over the functions of the Director of Consumer Affairs in relation to the enforcement of a wide range of legislation. It took over certain functions of the Consumer Director of the Financial Regulator. It may exercise its (limited) powers in the financial services sector in parallel with the Central Bank. Other powers in relation to unfair practices in the financial services sector remain within the Central Bank.


Investigative Powers

Authorised officers of the Commission have the powers of investigation, commonly conferred on regulators and enforcement bodies. They may enter property, inspect, copy and remove records. They may require persons at the property to give information.  They may enter premises. They may buy goods for the purpose of investigation. They may enter a private dwelling house with consent or a warrant from the District Court.

Authorised officers may be accompanied by members of the Garda Siochana when exercising their powers. Where records are proposed to be kept the inspector for more than 14 days, copies must be furnished on request to persons entitled to records within that time. Publishers of adverts must furnish information about persons who place the advertisement if so required.


Powers of Enforcement

The Consumer Protection Act gives the Competition and Consumer Protection Commission significant powers of enforcement. It may seek an injunction or prohibition order in respect of a prohibited practice.  It may accept a written undertaking from a trader in relation to the practice.  If the trader subsequently fails to comply, the Commission may then seek a prohibition order.

If the Commission considers that the trader has engaged in a prohibited commercial activity, it may serve a compliance notice directing him to remedy the prohibited practice. The service of the notice may be appealed. Failure to comply with its terms is an offence, which may be prosecuted.

The Commission has the power to impose administrative sanctions (“on the spot fines”) relating to prohibited practices.

The Commission maintains a list of traders who have committed an offence, have been subject to civil court orders, have given an undertaking or have been served with a compliance notice under the Act. The list may contain details of the matter the subject of the relevant enforcement action. It may publish the lists from time to time as it considers appropriate.


Enforcement Notices

The Commission may serve a compliance notice, where it is of the opinion that the person addressed is engaging in prohibited acts or practices or is otherwise breaching consumer protection legislation. The order directs the person to cease engaging in the practice and remedy the contravention.

A person on whom a contravention notice has been served may appeal to the court within 14 days. The court may vary, annul or confirm the notice.  Failure to comply with a direction in the notice without reasonable excuse is an offence

The Commission may serve a compliance notice, where it is of the opinion that the person addressed is engaging in prohibited acts or practices or is otherwise breaching consumer protection legislation. The order directs the person to cease engaging in the practice and remedy the contravention.

A person on whom a contravention notice has been served may appeal to the court within 14 days. The court may vary, annul or confirm the notice.  Failure to comply with a direction in the notice without reasonable excuse is an offence


Court Order Restring Unlawful Practices

The Commission or any other person may apply to the High Court or Circuit Court for an order prohibiting a trader from engaging in unfair, misleading or aggressive commercial practices.  The applicant need not have any direct interest in the matter, although he will typically be a person affected by the practice concerned.

The Court if it considers it necessary or appropriate, taking into account all interests involved, including the public interest, may make an enforcement order, without proof of loss or damage or any intention or negligent behaviour on the part of the trader.

The court may impose terms and conditions, including a requirement for the trader to publish a corrective statement.  It is an offence for the trader, without reasonable cause, to fail to comply with orders made.  A trader may be convicted on indictment or on summary prosecution for breach and is liable to fines and penalties, similar to those above.


Undertakings to Abide In lieu of Sanctions

The Competition and Consumer Protection Commission may take legally binding undertakings from traders if it has reason to believe that a trader has committed or is about to commit an unfair, misleading or aggressive commercial practice. The Commission may accept a written and signed undertaking in a form and on terms that it considers appropriate in the circumstances. Legal proceedings may be terminated if a binding undertaking is taken from the trader.

The Commission may take undertakings generally, by way of enforcement. The undertaking may include

  • an undertaking to comply with the legislation and to refrain from committing or engaging in any unfair, misleading or aggressive commercial practices;
  • undertaking to compensate consumers or a class of consumers, including reimbursing money or returning any property or thing received from consumers in connection with a consumer transaction;
  • undertaking to publish or cause to be published, at the trader’s expense, an advertisement containing a corrective statement relating to the prohibited act or practice.

The Commission is to publish the undertaking.  Where the trader fails to comply with the undertaking, the Commission may apply for a prohibition order as above.


Prosecutions

The Commission may initiate summary prosecutions of offences. A person charged with an offence under the legislation that is otherwise chargeable on indictment may be tried summarily if the offence constitutes a minor offence, the accused does not object and the DPP consents.

Prosecutions for offences under the Consumer Protection Act may be prosecuted summarily within two years of the date of the offence.

The directors, managers, and controllers of a company, who have consented to or approved the act or practice, may be themselves guilty of the offence concerned.

It is a defence for the director etc. if he proves that the commission of the offence was due to a mistake reliance on information supplied or due to some other cause beyond his control and that he acted with due diligence and took reasonable precautions to prevent the commission of the offence.


Offences

There is a range of penalties on summary conviction and on conviction on indictment under the legislation. There are higher penalties for second and subsequent offences.

There is provision for daily fines for continuing offences.  Where the prohibited act or matter continues, a new offence is committed for each day that the contravention continues.

There are very high penalties for offences involving unlawful pyramid promotion schemes.In prosecutions for offences the court may take into account corrective advertising published by the trader. Account is taken of a guilty plea.

Persons who have been convicted of an offence are to be ordered to pay the Commission’s costs and expenses in investigation and prosecution unless there are substantial and special reasons not to do so.


Criminal Penalties I

A person guilty of an offence under the Act (is liable on summary conviction to the following fines and penalties:

  • on a first summary conviction for any such offence, to a fine not exceeding €3,000 or imprisonment for a term not exceeding 6 months or both;
  • on any subsequent summary conviction for the same offence or any other offence under this Act to a fine not exceeding €5,000 or imprisonment for a term not exceeding 12 months or both.

If, after being convicted of an offence, the person continues to contravene the requirement or prohibition to which the offence relates, the person is guilty of a further offence on each day that the contravention continues and for each such offence is liable on summary conviction to a fine not exceeding €500.


Criminal Penalties II

A trader who engages in an aggressive commercial practice commits an offence which may be tried summarily or on indictment

A person guilty of an offence under the Act is liable on conviction on indictment to the following fines and penalties:

  • on the first conviction on indictment for any such offence, to a fine not exceeding €60,000 or imprisonment for a term not exceeding 18 months or both;
  • on any subsequent conviction on indictment for the same offence or any other offence under this Act (to a fine not exceeding €100,000 or imprisonment for a term not exceeding 24 months or both.

If, after being convicted of an offence, the person continues to contravene the requirement or prohibition to which the offence relates, the person is guilty of a further offence on each day that the contravention continues and for each such offence is liable—

  • on summary conviction, to a fine not exceeding €500, and
  • on conviction on indictment, to a fine not exceeding €10,000.

Action for Damages against Traders

A consumer who is affected by unfair, misleading or aggressive commercial practices committed by a trader may take a civil right for damages, including exemplary damages.  This may be brought in a District Court, Circuit Court or High Court, in accordance with its general jurisdiction limits.  Any compensation awarded must take account of any compensation paid pursuant to other provisions of the legislation such as undertakings.

A consumer aggrieved by a prohibited commercial practice may seek damages against the trader who has undertaken the practice concerned if he has suffered loss as a result of the act or practice. Exemplary/punitive damages may be awarded. The right does not apply to some commercial practices.

The action may be brought in the District Court, the Circuit Court or the High Court. The court may, in that action, award such damages as the court considers appropriate, including exemplary damages.


Action for Damages against Directors of Company

If the trader is a company or other body corporate, any director, manager, secretary or other officer of the trader, or a person who purported to act in any such capacity, who authorised or consented to the doing of the act or engaging in of the practice may be  subject to an order against him personally.

Where the act or practice complained of was done or engaged in by a company it is presumed, until the contrary is proved, that each director of the body and person employed by it whose duties included making decisions that, to a significant extent, could have affected the management of the body, and any other person who purported to act in any such capacity at the material time, consented to the doing of that act or  engaging in that practice.


Restraining Advertisements and Practices

An advertiser (which includes a publisher of advertisements) who publishes an advertisement which contravenes the prohibitions against prohibited commercial practices, is itself guilty of an offence. It is a defence if the advertiser proves he did not know and had no reason to suspect the contravention.

Advertisers must maintain records including the names and addresses of the traders who advertise with them. They must keep the records for a period of two years from publication.


Restraining Prohibited Practices

Any person including the Commission may apply to Court for an order prohibiting a trader from engaging in prohibited commercial acts or practices. If a private person applies for an order, the Commission must be given the opportunity to be heard in the application. It is an offence to fail to comply with an order without reasonable excuse.

The court may require the trader to publish a corrective statement at its own expense in relation to the subject matter of the order. Where a code operated by an association of traders, includes or promotes a prohibited practice, the Commission may apply to the court for an order against the person who promotes the code.

The Commission may accept an undertaking from traders who have undertaken acts or practices prohibited by the legislation. Undertakings may be given to compensate consumers and publish corrective advertisements relating to the act or practice. Where the consumer fails to comply with the undertaking, the Commission may apply to the court for an appropriate order.


Compensation Order after Conviction

The Commission may on behalf of and with the consent of an aggrieved consumer, apply to the court for a compensation order requiring the trader convicted of an offence for an order to pay monetary compensation in respect of the loss or damage caused by the offence.

The compensation order may be in substitution, in addition to a penalty. It may not exceed the amount the aggrieved person would be entitled to recover in an action for damages. Any order subsequently made for damages is to be reduced by the amount of the compensation order.

A person has been convicted of an offence may be required by the court to make a corrective statement.


Limits on Fees and Costs and Reimbursement

Part 5 of the Consumer Information Regulations apply to on-premises contracts, off-premises contracts and distance contracts made between traders and consumers.  There are similar exemptions to those which apply in respect of information and cooling off obligations.

Part 5 imposes requirements on traders to reimburse fees and charges made in breach of the regulations.  Failure to do so may be the subject of civil recovery. A provision in the contract to the contrary is unenforceable.  Breach of the provisions by a trader is an offence.

A trader must not charge fees that exceed the cost borne by the trader for use of a particular means of payment.  Accordingly, credit card costs, in excess of those actually incurred by the trader may not be passed on to the consumer.

Where a trader operates a phone in line with the purpose of allowing customers to contact the trader, the calls shall not be charged at more than the basic rate.


Whistleblower Protections

There are whistle-blower protection provisions for persons who communicate reasonably and in good faith about the commission of an offence under the Consumer Protection Act and under consumer legislation generally. It is an offence to give information which is known to be false.

Provided that a person acts in good faith, he is not liable for damage by reason of the complaint. He may not be penalised in his employment by reason of making the complaint in good faith.


References and Sources

Irish Texts

Consumer Law Rights & Regulation    Donnelly & White (2014)

Consumer Protection Act 2007 Annotated  Bird (2008)

Consumer Rights Long (2004)

Commercial & Consumer Law: Annotated Statutes O’Reilly, P (2000)

UK Texts

Consumer Sales Law: The Law Relating to Consumer Sales and Financing of Goods 3rd ed

John MacLeod, James Devenney (2019)

Electronic Consumer Contracts in the Conflict of Laws 2nd ed Zeng Sophia Tang (2018)

The Law of Consumer Redress in an Evolving Digital Market: Upgrading from Alternative to Online Dispute Resolution Pablo Cortes (2017)

Blackstone’s Statutes on Commercial & Consumer Law 2017-2018 Francis Rose

Consumer and Trading Standards: Law and Practice 2017 Bryan Lewin, Jonathan Kirk

Woodroffe and Lowe’s Consumer Law and Practice Woodroffe and Lowe’s Consumer Law and Practice 10th ed Geoffrey Woodroffe, Chris Willett, Christian Twigg-Flesner (2016)

Butterworths Trading and Consumer Law Looseleaf Annual Subscription Deborah L. Parry, Roland Rowell (2016)

Butterworths Commercial and Consumer Law Handbook 8th ed Richard B. Mawrey, Tobias Riley-Smith (2015

Consumer and Trading Standards: Law and Practice 4th ed

Legislation

Sale of Goods Act 1893 56 & 57

Sale of Goods and Supply of Services Act 1980

The 2011 Report of the Sales Law Review Group,

Consumer Protection Act 2007 19/2007

Competition and Consumer Protection Act 2014 29/2014

Orders Re Price Display (retained

Prices Act 1958.

Prices (Amendment) Act 1965

Prices (Amendment) Act1972

Orders made under Prices Acts 1958 and 1965 were carried over on repeal of the 1958 and 1965 Acts by 19/2007

Prices and Charges (Tax-inclusive Statements) Order 1973, S.I.

Charges (Hairdressing) Display Order 1976, S.I. No. 156 of 1976

Retail Prices (Food in Catering Establishments) Display Order 1984, S.I. No. 213 of 1984

Consumer Information (Advertisements) (Disclosure of Business Interest) Order 1984, S.I. No. 168 of 1984417

Consumer Information (Advertisements For Concert Or Theatre Performances) Order 1997, S.I. No. 103 of 1997

Retail Price (Diesel and Petrol) Display Order 1997, S.I. No. 178 of 1997

Retail Price (Beverages in Licensed Premises) Display Order 19/2007

Consumer Information Act Orders

Consumer Information (Advertisements For Airfares) Order 2000, S.I. No. 468 of 2000

Consumer Protection Act 2007 (Commencement) Order 2007,S.I. No. 178 of 2007

Consumer Protection Act 2007 (Establishment Day) Order 2007,S.I. No. 179 of 2007

Consumer Protection (Fixed Payment Notice) Regulations 2007,S.I. No. 689 of 2007

Consumer Protection Act 2007 (National Consumer Agency) Levy Regulations 2011, S.I. No. 560 of 2011

Consumer Protection (Consumer Information) (Articles of Precious Metals) Regulations 2012, S.I. No. 143 of 2012

Consumer Protection Act 2007 (National Consumer Agency) Levy Regulations 2012, S.I. No. 435 of 2012

Consumer Protection Act 2007 (National Consumer Agency) Levy Regulations 2013, S.I. No. 409 of 2013

Consumer Protection Act 2007 (National Consumer Agency) Levy Regulations 2014, S.I. No. 458 of 2014

Consumer Protection Act 2007 (Competition and Consumer Protection Commission) Levy Regulations 2015, S.I. No. 457 of 2015

European Communities (Cooperation Between National Authorities Responsible for the

Enforcement of Consumer Protection Laws) Regulations 2006, S.I. No. 290 of 2006 [Minister

European Communities (Cooperation Between National Authorities Responsible for the

Enforcement of Consumer Protection Laws) (Amendment) Regulations 2008, S.I. No. 316 of 2008  European Communities (Single-Member Private Limited Companies)European Communities (Protection of Consumers in Respect of Contracts made by Means of Distance Communication) (Amendment) Regulations 2010, S.I. No. 370 of 2010

European Communities (Court Orders for the Protection of Consumer Interests) Regulations 2010, S.I. No. 555 of 2010

European Union (Protection of Consumers in respect of Timeshare, Long-term Holiday Product, Resale and Exchange Contracts) Regulations 2011, S.I. No. 73 of 2011

European Communities (Cooperation between National Authorities Responsible for the Enforcement of Consumer Protection Laws) (Amendment) Regulations 2012, S.I. No. 485 of 2012 [

European Union (Public Limited Companies) (Directive 2012/ European Communities (Cooperation between National Authorities Responsible for the Enforcement of Consumer Protection Laws) (Amendment) Regulations 2013, S.I. No. 122 of 2013

European Communities (Unfair Terms in Consumer Contracts) (Amendment) Regulations 2013, S.I. No. 160 of 2013

European Communities (Cooperation between National Authorities Responsible for the Enforcement of Consumer Protection Laws) (Amendment) (No. 2) Regulations 2013, S.I. No. 200 of 2013

European Union (Consumer  nformation, Cancellation and Other Rights) Regulations 2013, S.I. No. 484 of 2013

European Union (Consumer Information, Cancellation and Other Rights) (Amendment) Regulations 2014, S.I. No. 250 of 2014

European Communities (Unfair Terms in Consumer Contracts) (Amendment) Regulations 2014, S.I. No. 336 of 2014

European Union (Protection of Consumers in respect of Timeshare, Long-term Holiday Product, Resale and Exchange Contracts) (Amendment) Regulations 2014

European Union (Alternative Dispute Resolution for Consumer Disputes) Regulations 2015, S.I. No. 343 of 2015

European Union (Alternative Dispute Resolution for Consumer Disputes) (No. 2) Regulations

2015, S.I. No. 368 of 2015

European Union (Traded Companies — Corporate Governance Statements) Regulations 2015, S.I. No. 423 of 2015

European Union (Online Dispute Resolution for Consumer Disputes) Regulations 2015, S.I. No. 500 of 2015

European Union (Online Dispute Resolution for Consumer Disputes) Regulations 2016, S.I. No. 32 of 2016

European Union (Consumer Information, Cancellation and Other Rights) (Amendment) Regulations 2016, S.I. No. 336 of 2016

Competition and Consumer Protection Act 2014 (Commencement) Order 2014, S.I. No. 366 of 2014

Competition and Consumer Protection Act 2014 (Establishment Day) Order 2014, S.I. No. 367 of 2014

Consumer Protection Act 2007 (Grocery Goods Undertakings) Regulations 2016, S.I. No. 35 of 2016

Consumer Protection Act 2007 (Competition and Consumer Protection Commission) Levy Regulations 2016, S.I. No. 479 of

2016

District Court (Consumer Protection Act 2007) Rules 2009, S.I. No. 106 of 2009

European Communities (Unfair Terms in Consumer Contracts) Regulations 1995, S.I. No. 27 of 1995 [

European Communities (Unfair Terms in Consumer Contracts) (Amendment) Regulations 2000, S.I. No. 307 of 2000

European Communities (Certain Aspects of the Sale of Consumer Goods and Associated Guarantees) Regulations 2003, S.I. No. 11 of 2003

European Communities (Protection of Consumers in Respect of Contracts Made by Means of Distance Communication) (Amendment) Regulations 2005, S.I. No. 71 of 2005

European Communities (International Financial  European Communities (Cooperation Between National Authorities Responsible for the Enforcement of Consumer Protection Laws) Regulations 2006, S.I. No. 290 of 2006

European Communities (Distance Marketing of Consumer Financial Services) Regulations 2004, S.I. No. 853 of 2004

Circuit Court Rules (Consumer Protection Act 2007) 2008, S.I. No. 585 of 2008

European Communities (Court Orders for the Protection of Consumer Interests) Regulations 2010, S.I. No. 555 of 2010

European Communities (Unfair Terms in Consumer Contracts) Amendment) Regulations 2013, S.I. No. 160 of 2013

European Union (Consumer Information, Cancellation and Other Rights) Regulations 2013, S.I. No. 484 of 2013

European Union (Consumer Information, Cancellation and Other Rights) (Amendment) Regulations 2014, S.I. No. 250 of 2014

European Communities (Unfair Terms in Consumer Contracts) (Amendment) Regulations 2014, S.I. No. 336 of 2014

European Union (Alternative Dispute Resolution for Consumer Disputes) Regulations 2015, S.I. No. 343 of 2015

European Union (Alternative Dispute Resolution for Consumer Disputes) (No. 2) Regulations 2015, S.I. No. 368 of 2015

European Union (Online Dispute Resolution for Consumer Disputes) Regulations 2015, S.I. No. 500 of 2015

European Union (Online Dispute Resolution for Consumer Disputes) Regulations 2016, S.I. No. 32 of 2016

European Union (Consumer Information, Cancellation and Other Rights) (Amendment) Regulations 2016, S.I. No. 336 of 2016