S.I. No. 207/2001 - European Communities (Protection of Consumers in Respect of Contracts Made by Means of Distance Communication) Regulations, 2001

1. The identity of the supplier and, in the case of contracts requiring payment in advance, his or her address.

2. The main characteristics of the goods or services.

3. The price of the goods or services including all taxes.

4. Delivery costs, where appropriate.

5. The arrangements for payment, delivery or performance.

6. The existence of a right of cancellation, except in the cases referred to in subparagraphs (a), (b), (c), (d), (e) and (f) of paragraph (4) of Regulation 6.

7. The cost of using the means of distance communication, where it is calculated other than at the basic rate.

8. The period for which the offer or the price remains valid.

9. Where appropriate, the minimum duration of the contract in the case of contracts for the supply of goods or services to be performed permanently or recurrently.

GIVEN under my Official Seal,

this 15

th

day of May, 2001

MARY HARNEY

Minister for Enterprise, Trade and Employment

EXPLANATORY NOTE

These Regulations implement Directive 97/7/EC of the European Parliament and the Council on the protection of consumers in respect of distance contracts. The Regulations apply to contracts for goods or services (other than financial services) to be supplied to a consumer where the contract is made exclusively by means of distance communication, ie, without the simultaneous physical presence of the supplier and the consumer. Key provisions deal with the information which a consumer must be given before entering into a contract; subsequent written confirmation of that information; and a cooling-off period within which the consumer may cancel the contract.

1

O.J. No. L 144, 4.6.97, p.19

2

O.J. No. L 141, 11.6.1993, p. 27.

3

O.J. No. L 386, 30.12.1989, p. 1. Directive as amended by Directive 92/30/EEC (O.J. No. L 110, 28.4.1992, p. 52).

4

O.J. No. L 228, 16.8.1973, p. 3. Directive as last amended by Directive 92/49/EEC (O.J. No. L 228, 11.8.1992, p. 1).

5

O.J. No. L 63, 13.3.1979, p. 1. Directive as last amended by Directive 90/619/EEC (O.J. No. L 330, 29.11.1990, p. 50).

6

O.J. No. L 56, 4.4.1964, p. 878/64. Directive as amended by the 1973 Act of Accession.

7

O.J. No. L 228, 11.8.1992, p. 1.

8

O.J. No. L 360, 9.12.1992, p. 1.

10. (1) The consumer may request cancellation of any payment made under a distance contract or, as appropriate, the recredit or return of such a payment, where fraudulent use had been made of his or her payment card.

(2) Such a request shall be complied with immediately.

(3) A person who fails to comply with this Regulation is guilty of an offence.

(4) For the purposes of this Regulation “payment card” includes credit cards, charge cards, debit cards and store cards.

11. (1) A person who, not having reasonable cause to believe there is a right to payment, in the course of any business makes a demand for payment, or asserts a present or prospective right to payment, for what he or she knows is an unsolicited service supplied to another person is guilty of an offence.

(2) A person who, not having reasonable cause to believe there is a right to payment, in the course of any business and with a view to obtaining payment for what he or she knows is an unsolicited service supplied as mentioned in paragraph (1) -

(a) threatens to bring any legal proceedings, or

(b) places or causes to be placed the name of any person on a list of defaulters or debtors or threatens to do so, or

(c) invokes or causes to be invoked any other collection procedure or threatens to do so,

is guilty of an offence.

(3) In this Regulation -

“service” has the same meaning that it has in the

Sale of Goods and Supply of Services Act, 1980

(No. 16 of 1980),

“unsolicited” means, in relation to a service supplied to a person that it is supplied without any prior request made by him or her or on his or her behalf.

12. (1) A distance contract shall not be enforceable against the consumer by the supplier if made -

(a) by means of an automated calling system such as an automatic calling machine without human intervention or by a facsimile machine unless the consumer gives his or her prior consent to such means being so used,

or,

(b) by any means of distance communication, other than one referred to in paragraph (a), which allows individual communications unless there has been no clear objection from the consumer to such means being so used.

(2) A person who fails to comply with this Regulation is guilty of an offence.

13. (1) The Director or a consumer organisation may apply to the High Court for an order requiring a person to do or to refrain from doing anything the doing or refraining from doing of which is necessary to ensure compliance by that person with the provisions of these Regulations.

(2) On the hearing of such an application the High Court may grant or refuse to grant such an order.

(3) The Director or the consumer organisation shall cause to be published notice of their intention to apply to the High Court for an order under paragraph (1) in Iris Oifigiúil and at least two national newspapers and in such further or other manner as the Court may direct.

(4) Every person claiming to have an interest in any such application shall be entitled to appear before and be heard by the Court on the hearing of the application.

(5) On any such application it shall not be necessary for the Director, the consumer organisation or any such person to prove -

(a) actual loss or damage, or

(b) recklessness or negligence on the part of the supplier or operator of a means of communication.

(6) On any such application the onus of proving compliance with the requirements of these Regulations shall be on the person against whom the proceedings are instituted.

(7) In the exercise of its jurisdiction under paragraph (1) the Court shall take account of all the interests involved and in particular the public interest.

(8) Paragraph (1) is without prejudice to the right of a consumer to rely on the provisions of these Regulations in any case before a court of competent jurisdiction.

(9) Without prejudice to the power of the High Court to enforce an order made pursuant to paragraph (2), a person who fails to comply with an order made pursuant to that paragraph is guilty of an offence.

14. (1) The Director may appoint persons to be authorised officers for the purposes of these Regulations.

(2) An authorised officer when exercising a power under these Regulations shall, if requested by a person affected, produce evidence in writing of his or her appointment as an authorised officer.

(3) An appointment of an authorised officer shall cease where the Director revokes the appointment, or, where it is for a fixed period, upon the expiry of that period.

(4) An authorised officer may, for the purpose of these Regulations and the Directive -

(a) at all reasonable times enter a premises, at which there are reasonable grounds to believe that any trade, business or profession involving distance contracts, or supply of services pursuant to Regulation 11, is carried on and search and inspect the premises and any records on the premises,

(b) secure for later inspection any premises or any part of any premises in which such records are kept or there are reasonable grounds for believing that such records are kept,

(c) require a person who carries on such trade, business or profession or their employee to produce to the officer such records and in the case of such information in a non-legible form to reproduce it in a permanent legible form or to give to the officer such information as he or she may reasonably require in relation to any entries in such records,

(d) inspect and take copies of or extracts from any such records (including in the case of information in a non-legible form a copy of or extract from such information in a permanent legible form),

(e) inspect and copy or extract information from any data (within the meaning of the

Data Protection Act, 1988

(No. 25 of 1988)), found or produced to the officer under this Regulation,

(f) remove and retain the records for such period as may be reasonable for further examination, subject to a warrant being issued for that purpose by the District Court,

(g) require a person to give to the officer any information which the officer may reasonably require in regard to the trade, business or profession or in regard to the persons carrying on such trade, business or profession or their employees,

(h) require any person by or on whose behalf data equipment is or has been used or any person having charge of, or otherwise concerned with the operation of, the data equipment or any associated apparatus or material, to afford the officer all reasonable assistance in relation thereto,

(i) summon, at any reasonable time, any other person employed in connection with the trade, business or profession to give to the officer any information which the officer may reasonably require in regard to such trade, business or profession and to produce to the officer any records which are in that person's power or control,

(j) carry out or have carried out such examinations, tests, inspections and checks of any books, records or other documents (including in the case of information in non-legible form a copy of or extract from such information in permanent legible form) or any other data (within the meaning of the

Data Protection Act, 1988

) found there as he or she reasonably considers necessary.

(5) An authorised officer shall not, other than with the consent of the occupier, enter a private dwelling unless he or she has obtained a warrant from the District Court under Regulation 15 authorising such entry.

(6) Where an authorised officer in the exercise of his or her powers under these Regulations is prevented from entering any premises an application for a warrant may be made under Regulation 15 authorising such entry.

(7) An authorised officer appointed under these Regulations where he or she considers it necessary, may be accompanied by a member of the Garda Síochána when exercising any powers conferred on an authorised officer by these Regulations.

(8) A person who obstructs or interferes with an authorised officer in the exercise of his or her powers under these Regulations or gives to an authorised officer information which is false or misleading or who does not comply with any request or requirement of an authorised officer under these Regulations is guilty of an offence.

15. If a judge of the District Court is satisfied on the sworn information of an authorised officer that there are reasonable grounds for suspecting that there is information required by an authorised officer under these Regulations held on any premises or any part of any premises, the judge may issue a warrant authorising an authorised officer, accompanied, if appropriate, by other authorised officers, or a member or members of the Garda Síochána at any time or times within one month from the date of issue of the warrant, on production if so requested of the warrant, to enter, if need be by reasonable force, and exercise all or any of the powers conferred on an authorised officer under Regulation 14.

16. Where an offence under these Regulations has been committed by a body corporate and is proved to have been committed with the consent or connivance of or to be attributable to any neglect on the part of a person being a director, manager, secretary or other officer of the body corporate, or a person who was purporting to act in any such capacity, that person as well as the body corporate shall be guilty of an offence and be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.

17. (1) An offence under these Regulations may be prosecuted by the Director.

(2) A person guilty of an offence under these Regulations shall be liable on summary conviction to a fine not exceeding €3,000 (£2,362.69).

18. A consumer may not waive the rights conferred on him or her under these Regulations.

19. (1) A condition contained in a distance contract which applies or purports to apply the law of a state other than a Member State shall be void if the contract has a close connection with the territory of a Member State.

(2) For the purposes of this Regulation “Member State” means a State which is a contracting party to the Agreement on the European Economic Area signed at Oporto on 2 May 1992 as adjusted by the Protocol signed at Brussels on 17 March 1993.

SCHEDULE 1

Regulation 2

ANNEX I

Means of communication covered by Article 2(4)

- Unaddressed printed matter

- Addressed printed matter

- Standard letter

- Press advertising with order form

- Catalogue

- Telephone with human intervention

- Telephone without human intervention (automatic calling machine, audiotext)

- Radio

- Videophone (telephone with screen)

- Videotex (microcomputer and television screen) with keyboard or touch screen

- Electronic mail

- Facsimile machine (fax)

- Television (teleshopping).

SCHEDULE 2

Regulation 3(i)(I)

ANNEX II

Financial services within the meaning of Article 3(1)

- Investment services

- Insurance and reinsurance operations

- Banking services

- Operations relating to dealings in futures or options.

Such services include in particular

- investment services referred to in the Annex to Directive 93/22/EEC (

2

); services of collective investment undertakings,

- services covered by the activities subject to mutual recognition referred to in the Annex to Directive 89/646/EEC (

3

),

- operations covered by the insurance and reinsurance activities referred to in

- Article 1 of Directive 73/239/EEC (

4

),

- the Annex to Directive 79/267/EEC (

5

),

- Directive 64/225/EEC (

6

),

- Directives 92/49/EEC (

7

) and 92/96/EEC (

8

).

SCHEDULE 3

Regulation 4(1)

Regulation 5(1)

I, MARY HARNEY, Minister for Enterprise, Trade and Employment, 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 97/7/EC of the European Parliament and of the Council of 20 May 1997

1

on the protection of consumers in respect of distance contracts hereby make the following regulations