The Department of Jobs, Enterprise and Innovation have published a Consultation Paper on the implementation of the Consumer Rights Directive (2011/83/EU) (the Directive). The Directive must be transposed into national law by EU Member States by 13 December 2013 and must be applied in Member States from 13 June 2014.
The Directive repeals and replaces the current Directive on Contracts Negotiated Away from Business Premises (85/577/EEC) and the Distance Selling Directive (97/7/EC). The Directive on Certain Aspects of the Sale of Consumer Goods and Associated Guarantees (1999/44/EC), and the Unfair Terms in Consumer Contracts Directive (93/13/EEC), are amended but will remain in force.
Most of the provisions of the Directive apply only to off-premises contracts (contracts concluded away from the trader’s premises, such as in the consumer’s home or workplace), and distance selling contracts (contracts concluded by means of distance communication, such as contracts concluded online, over the telephone, or by post).
The Directive, subject to a few minor exceptions, is a maximum harmonisation instrument. This means that Member States cannot go beyond, or add to, the Directive’s harmonised provisions in national legislation.
The questions on which views are sought in the Consultation relate to:
- The possible extension of the Directive’s provisions to certain contracts outside its scope – Views are sought on the possible extension of the Directive’s core provisions on consumer information and the right of withdrawal to contracts outside its scope relating to social services, healthcare and gambling.
- The Directive’s optional provisions – Member States can opt to exempt off-premises contracts, with a value of less than €50 from the scope of the Directive’s provisions on information and withdrawal rights. Member States can also opt not to apply the Directive’s information requirements to goods or services of a routine nature that are concluded on the trader’s premises, such as in-store purchases of groceries or other household staples.
There is a further option of applying a lighter information regime for off-premises repair contracts, with a value of less than €200, which are performed immediately. Member States have the option to provide that, where a distance contract is to be concluded by telephone, the trader has to confirm his offer to the consumer who is bound only after he has signed this offer or sent his written consent. Member States can additionally require that the trader’s confirmation must be in writing or on another durable medium.
- Matters relating to the enforcement of the Directive – The Directive requires Member States to ensure that adequate and effective means exist to ensure compliance with its provisions. To give effect to this requirement, it is proposed to permit the National Consumer Agency to apply in the District Court, Circuit Court, or High Court, for an order prohibiting a trader from engaging in breaches of the Directive.
It is also proposed, other than in respect of the provisions of the Directive on delivery and the passing of risk in contracts for sale, to empower the Agency to bring criminal proceedings for alleged breaches by traders. The omission of criminal law enforcement for the provisions relating to contracts of sale is due to the fact that the Sale of Goods Act 1893 and 1980 and the Regulations implementing the EU Directive on Consumer Sales are only enforceable by the buyer under contract law.
Responses to the Consultation must be sent by Monday 1 July, by email to conspol@djei.ie or by post to Competition and Consumer Policy Section, Department of Jobs, Enterprise and Innovation, Earlsfort Centre, Lower Hatch Street, Dublin 2.