UK Government consults on the implementation of the Consumer Rights Directive

04 October 2012

Ian Williamson, Ben Woodfield

The UK Department for Business, Innovation and Skills (BIS) has published a consultation regarding the UK’s implementation of the Consumer Rights Directive (the Directive). The consultation closes on 1 November 2012, and will be of interest to those selling products or services to UK consumers, as well as to UK consumers themselves.

The Directive must be implemented by Member States by 31 December 2013 and will apply to consumer contracts from 13 July 2014. Its aim is to harmonise certain EU-wide consumer protection rules including those relating to transparency of information, express consent for payments, prohibiting excessive charges and cancellation rights for distance and ‘off-premises’ contracts. A key driver for the Directive is the EU’s concern that cross-border trade may be affected by the current disjointed and uneven implementation across the Member States of the ‘Distance Selling Directive’ (97/7/EC) and the ‘Doorstep Selling Directive’ (85/577/EEC), both of which are replaced by the new Directive.

Accordingly, Member States are given limited flexibility on how to implement the new Directive. The majority of the new Directive consists of ‘maximum harmonisation measures’ where Member States have very limited discretion on how to implement the requirements. This means that the UK’s consultation is limited to the small number of areas where the UK government has some flexibility over implementation.

The consultation includes 27 questions, the key areas of which are summarised below:

  • Implementation method: Opinions are sought as to whether the proposal to "copy out" the Directive’s provisions (meaning largely copying the Directive word for word) would lead to any uncertainty.
     

  • Scope: The consultation proposes to extend certain provisions of the Directive to ‘healthcare goods and services’ and ‘social services’ (both of which are currently captured by existing distance selling and doorstep selling rules) but to keep financial services and gambling regulated by sector specific legislation.
     

  • Enforcement/Private Redress: Opinions are sought on how to enforce the Directive. The UK’s proposals are to allow the UK legislation implementing the Directive to be enforced under Part 8 of the Enterprise Act 2002 (which would, for example, allow OFT enforcement), and to supplement this by introducing a specific regime of injunctions. Views are also sought on related issues, such as whether non-compliance with information provision requirements in off-premises contracts should remain a criminal offence and whether consumers and traders should be entitled to private redress from the other’s non compliance (for example a failure to refund payments or a failure to return goods).
     

  • Ancillary contracts: The consultation proposes to extend the existing automatic cancellation rules for ancillary credit arrangements to all ancillary contracts (such as extended warranties and maintenance contracts).
     

  • Day to day transaction exemption: Views are sought on proposals to implement certain exceptions on information requirements for onsite premises sales for day to day transactions performed immediately at the time of their conclusion (such as the purchase of a cup of coffee).
     

  • Thresholds: the Directive sets a maximum threshold for off-premises contracts at €50. Views are sought on whether a lower threshold should be set.

The Government Response from the consultation is due to be issued on 6 March 2013.

For further information please contact:









Ian WilliamsonBen Woodfield

Ian Williamson

Senior Associate, London
ian.williamson@twobirds.com
Direct: +44 (0)20 7905 6345


Ben Woodfield

Associate, London
benjamin.woodfield@twobirds.com
Direct: +44 (0)20 7415 6723