The effect of Brexit on UK consumer protection law

By Robert Turner

01-2021

Over the last decade, a distinct body of law has arisen that regulates the contractual relationships formed between businesses and consumers, often known as consumer protection law. The development of this area of law has been principally driven by the EU through a series of directives and regulations. This article explores how consumer protection law in the UK has been affected by the UK’s withdrawal from the EU and the divergence that may follow in the coming years.

Background

Consumer protection law aims to level the playing field between businesses and consumers when they contract with each other, and includes key provisions applicable to most B2C contracts, such as: 

  • the fairness test i.e. contractual terms and notices must not create an unfair imbalance in favour of businesses;
  • the transparency test i.e. contractual terms and notices must be in plain and intelligible language;
  • the right of withdrawal i.e. the right of a consumer to cancel a contract formed via distance communications (or off-premises) within 14 days; and
  • implied contractual warranties and remedies e.g. goods being of satisfactory quality.

Consumer protection law is formed from many different legislative sources, with most deriving from EU regulations and directives. For example, two of the most significant pieces of UK consumer protection legislation, the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 and the Consumer Rights Act 2015, implement most of the provisions of the Consumer Rights Directive (2011/83/EU). 

Effect of Brexit: 1 January 2021

Whilst EU based law remained largely in force and applicable during the transition period in 2020 (albeit with a different legal basis for such application), the transition period has now expired. In the short-term, however, UK consumer protection law has not significantly changed. 

The table at the end of this article sets out how the UK formally leaving the EU has affected the most significant consumer protection legislation but, in summary, the key changes are as follows.

1. Online dispute resolution – the European Commission operates a dispute resolution platform known as the ODR platform to resolve disputes arising from cross-border B2C transactions with the help of an approved dispute resolution body. From 1 January 2021, UK consumers will no longer be able to submit a new complaint on the ODR platform and will also not be able to act on any ongoing cases in the platform, whether to send it to a dispute resolution body, contact a UK ODR advisor or receive an outcome. UK businesses will not be able to access the ODR dashboard.

2. Co-operation between national enforcement authorities – the Consumer Protection Cooperation Regulation (2017/2394) has been revoked. The Regulation sought to facilitate cooperation between EU enforcement authorities in relation to consumer protection and enable the European Commission to co-ordinate common actions between national enforcement authorities. 

3. P2B Regulation – the P2B Regulation imposes obligations on platform/search engine operators where those platforms or search engines allow businesses to reach consumers in the EU.[1]  The territorial test for the application of the P2B Regulation is that the platform/search engine is aimed at consumers in the EU and at least some of the businesses using the platform/search engine are based in the EU. The P2B Regulation will continue to apply to platform/search engine operators based in the UK where that platform/search engine is used by EU-based businesses and reaches EU consumers. In addition, the UK has implemented additional legislation to create a dual regime that reflects the P2B Regulation but is restricted to the UK only i.e. the scope applies to UK-based businesses selling to UK-based consumers using the platform/search engine.[2] 

Choice of law

In addition, the prevalence of online trade has meant that many businesses transact on a cross-border basis and need to understand what laws will apply to their B2C online contracts. Article 6 of Rome I allows businesses to elect the governing law of their B2C contracts, but that choice of law is subject to the application of mandatory local law of the consumer where the business directs activities to the country where the consumer has their habitual residence. In effect, this means that businesses will specify the governing law of their B2C contracts but usually seek local law advice when directing their activities to a particular country to ensure the contractual terms are enforceable.

The UK has enacted legislation that contains rules equivalent to Rome I.[3]  This means that:
  • contracts entered into prior to 2021 (provided on or after 17 December 2009) will be governed by Rome I; and
  • contracts entered into from 1 January 2021 onwards will be governed by the new rules,
but the principle of electing the governing law but being subject to mandatory local law in the countries in which services are directed shall continue.

Future divergence

Whilst Brexit has not resulted in an immediate significant change to UK consumer protection law, it is likely that UK law will start to diverge from the EU position in the coming years. 

First, the UK is not obliged to implement EU directives that had not reached their implementation date, nor will any EU regulations be EU retained law if they were not applicable before the end of 2020. There are significant upcoming changes to EU consumer protection law that will not therefore automatically become UK law, including: 

  • the Digital Content and Digital Services Directive (2019/770) and the Sale of Goods Directive (2019/771), both of which are to be transposed into national law by 1 July 2021; and
  • the Enforcement and Modernisation Directive (2019/2161) that is to be transposed into national law by 28 November 2021.
The extent to which the UK decides to enact similar legislation to keep harmonisation with the EU remains to be seen.
Secondly, the interpretation of UK consumer protection law may diverge from the equivalent EU law for two reasons: (1) whilst CJEU case law must be followed by the lower courts, the Court of Appeal and Supreme Court have the right to diverge from existing CJEU decisions; and (2) any future CJEU case law will not set precedents in the English legal system.

Conclusion

Brexit has not resulted in immediate significant changes to UK consumer protection law. The law may, however, diverge more significantly in years to come. Whether the UK implements legislation that reflects the provisions in the upcoming EU directives later this year will be a key indicator of how harmonised the law in this area will remain.  

Summary of key changes to UK consumer protection law

Legislation

Amending Brexit statutory instrument

Key changes

Consumer Protection from Unfair Trading Regulations 2008

Consumer Protection (Amendment etc.) (EU Exit) Regulations 2018

  • Trader liability for the misleading or aggressive practices of importers of goods restricted to importers into the UK, rather than importers into the EEA.
  • Blacklisted practices - requirements regarding language and availability of after sales service amended to apply to situations where trader has communicated with the consumer in language other than English (rather than the official language of the trader’s EEA State).

Consumer Rights Act 2015

Consumer Protection (Amendment etc.) (EU Exit) Regulations 2018

  • Governing law – exception for contracts which are governed by EEA law removed, so certain provisions of the CRA will apply to all contracts with a ‘close connection’ to the UK.
  • Satisfactory quality requirement – only statements made by importers to the UK will have a bearing on this standard, rather than importers into the EEA.
  • Exemption from fairness test – no longer applies to contract terms which reflect mandatory provisions of international conventions to which the EU is a party.

Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013

Consumer Protection (Amendment etc.) (EU Exit) Regulations 2018

No key changes.

Consumer Rights (Payment Surcharges) Regulations 2012

Consumer Protection (Amendment etc.) (EU Exit) Regulations 2018

Surcharge restrictions only apply if at least one of the payment service providers used is UK-based (rather than EEA-based).

Price Marking Order 2004

None at present

None at present

Electronic Commerce (EC Directive) Regulations 2002

Electronic Commerce (Amendment etc) (EU Exit) Regulations 2019

No key changes.

Provision of Services Regulations 2009

Provision of Services (Amendment etc.) (EU Exit) Regulations 2018

  • UK authorities able to regulate EEA businesses in the same way as third country service providers, and obligation on service providers to give details of EEA regulators removed.
  • Ban on discriminating against consumers based on their residence removed.
  • Obligations to provide information to service recipients no longer includes recipients who are EEA nationals.

Consumer ADR Regulations 2015

Consumer Protection (Amendment etc.) (EU Exit) Regulations 2018)

  • Approval of ADR bodies by Member States (other than those in the UK Regulations) no longer recognised.
  • UK businesses and consumers will lose access to the ODR platform, and businesses will no longer be subject to the corresponding information obligations.

Consumer Protection Cooperation Regulation (2017/2394)

The Consumer Protection (Enforcement) (Amendment etc.) (EU Exit) Regulations 2019 (2019/203)

 

Revoked.

The Platform to Business Regulation (2019/1150)

The Online Intermediation Services for Business Users (Amendment) (EU Exit) Regulations 2020

Dual regime enacted for platforms / search engine operators that make those platforms / search engines available to UK businesses and UK consumers.

 

 

 

[1] Regulation on promoting fairness and transparency for business users of online intermediation services (Regulation (EU) 2019/1150)

[2] The Online Intermediation Services for Business Users (Amendment) (EU Exit) Regulations 2020

[3] Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (Retained EU Legislation)