B2C Online Transactions:
the New Regulatory Regime
CONSUMER LAW:
COMPLIANCE AND PROTECTION
11 DECEMBER 2014
THE LAW SCHOOL, UCC.
Then and Now
Then ....
 Distance Selling Directive 97/7 and SI No. 207/2001
Now, ... as of 14 June 2014
 Consumer Rights Directive 2011/83 and SI Nos
484/2013 and 250/2014
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On-premises;
Off-premises (door-step); and
Distance contracts.
Targets from EU Digital Agenda
 E.g. by 2015:
- 33% of SMEs selling
online (14% in 2012);
- 20% of population buying
cross-border (12% in
2012);
- 50% of population buying
online (45% in 2012)
Consumer Perspective
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In 2004, 16% of EU15 citizens had ever bought via Internet;
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In 2013, purchases via Internet up to 53% (EU27)(IE: 66%)
majority of internet purchases are home-based as opposed to
cross-border
 EU 27: 15% cross-border
 IE : 48% cross-border
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What’s new?
 EU (Consumer Information, Cancellation and other
Rights) Regulations 2013, SI No 484/2013
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Focus on e-commerce and m-commerce;
Application – broader scope;
Information Rights – more obligations; more focussed;
Cancellation Rights – from 7 to 14 days; model instructions
and form; more detail;
Miscellaneous Provisions.
Application - Reg 2
‘Distance contract’ has 3 elements:
1. contract concluded between a trader and a
consumer (B2C);
2. under an organised distance sales or serviceprovision scheme;
3. without the simultaneous physical presence of the
trader and the consumer, and with the exclusive
use of one or more means of distance
communication up to and including the time at
which the contract is concluded.
Application - Regs 3 & 6
The Regulations apply to 5 contract types between traders
and consumers (B2C):
1. sales of goods contracts, including digital content on a
tangible medium, and water, gas, or electricity in a
limited quantity;
2. service contracts;
3. contracts for the supply of digital content not supplied on
a tangible medium;
4. contracts for the supply of electricity, gas, or water not
supplied in a limited volume or set quantity;
5. contracts for the supply of district heating.
Exemptions – Regs 3(2) & 6(2)
 There are 14 types of contracts completely exempted:
 social services;
 healthcare;
 gambling;
 financial services;
 immoveable property;
 construction of new buildings or substantial conversion;
 for rental of accommodation for residential purposes;
 package holidays, timeshare,
 etc
 Passenger transport services – subject to information
obligations,
Information Obligations – in outline
 Rationale
 General pre-contract information – Reg 10, Sch 2&3
 Specific provisions re m-commerce, websites and e-
commerce – Reg 11
 Post-contract confirmation – Reg 12;
General Pre-Contract Information – Reg 10
What, When & How
What: 24 items of information in Sch 2, e.g.
 main characteristics of goods/services;
 identity of trader, trading name;
 contact details: geo. address, telephone, fax, e-mail;
 total price;
 additional delivery and other costs;
 arrangements of payment and delivery/performance;
 details of cancellation right, if applicable;
General Pre-Contract Information – Reg 10
What, cont:
 functionality and interoperability of digital content;
 etc.
 plus, if applicable, model cancellation form in Sch 3;
When: prior to making the contract;
How: clear and comprehensible manner in a way which is
appropriate to the means of distance communication used
– e.g. on website
m-commerce, websites and e-commerce
 Reg 10(7) modifies the information obligations to
take account of the technical constraints of certain
media e.g. mobile phone screens;
 Reg 10(9) re website, the website must indicates any
delivery restrictions and payment means accepted;
 Reg 11 re e-commerce contracts, with obligation to
pay:
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make consumer aware of minimum key Sch 2 information;
consumer’s acknowledgement of payment obligation;
‘button’ – ‘order and pay’
Post-contract confirmation – Reg 12;
What: Schedule 2 information;
When: confirmation within a reasonable time after
the conclusion of the contract and at the latest—
(a) at the time of the delivery of the goods, or
(b) before performance begins of (i) a service ...
How: durable medium e.g. paper, e-mail but
probably not website (Art 2)
Cancellation Rights – in outline
 Right of cancellation from 7 -14 calendar days
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(Regs 15-16);
No reason; no penalty, but some costs; refund (Reg
14);
Exemptions from cancellation right (Reg 13(2));
Model cancellation instructions and form (Reg 17);
Trader’s duties on cancellation (Reg 19);
Consumer’s duties on cancellation (Reg 20)
Special rules re services, utilities and digital
content (Regs 21-22)
Exemptions from Cancellation Right – 15 types
 E.g. service contracts, after fully performed if the performance has
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begun with—
(i) the consumer’s prior express consent, and
(ii) the consumer’s acknowledgement of loss of right;
contracts for intangible digital content where performance has
begun with the consumer’s prior express consent and with the
consumer’s acknowledgement of loss of right;
contracts where price is dependent on fluctuations in the market;
contracts for non-prefabricated goods; ....
contracts for passenger transport services;
contracts for accommodation; the transport of goods; car rental;
catering; or services related to leisure activities, where the contract
provides for a specific date or period of performance; ...
Model Cancellation Form
B. MODEL CANCELLATION FORM
[Complete and return this form only if you wish to cancel the contract.]
— To [here the traders name, geographical address and, where available,
his fax number and e-mail address are to be inserted by the trader]:
— I/We [*] hereby give notice that I/We [*] cancel my/our [*] contract of
sale of the following goods[*]/for the provision of the following service
[*],
— Ordered on[*]/received on [*],
— Name of consumer(s),
— Address of consumer(s),
— Signature of consumer(s) [only if this form is notified on paper],
— Date
Trader’s duties on cancellation – Reg 19
 Refund all payments, ... ;
 Without undue delay and within 14 days of being
informed of decision to cancel;
 Using same payment method;
 But may withhold refund until goods received ...
Consumer’s duties on cancellation – Reg 20
 To return the goods, unless trader has agreed to
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collect;
Without undue delay and within 14 days of
informing trader of decision to cancel;
At consumer’s cost, unless agreed otherwise;
Must take reasonable care of goods;
May be liable for any diminished value;
Enforcement & Sanctions
 C&CPC - Part V of Consumer Protection Act 2007
 Civil: e.g. prohibition orders; undertakings
 Criminal proceedings –
summary conviction Class A fine and/or up to 12 mths;
 conviction on indictment to a fine not exceeding €60,000
and/or imprisonment up to 18 mths.
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 Consumers and Traders
 Contract may not be enforceable;
 Extended cancellation period;
 Certain charges may not be payable;
 Breach of statutory duty.
Risk and Delivery (all sale of goods)
 Risk – if B2C and seller dispatches the goods, risk
passes on delivery (S0GA 1893, new s.20(3));
 Delivery – if B2C, default 30 days delivery period
(SoGA 1893, s.29(2B))
Miscellaneous
E.g.
 Certain payment surcharges prohibited – Reg 25;
 E.g. Irish Rail
 Add-ons & pre-ticked boxes prohibited – Reg 26
 E.g. Ryanair
See further
 Department of Jobs, Innovation and Enterprise,
Guidance Note on the EU (Consumer Information,
Cancellation and other Rights) Regulations 2013
(June 2014), available at
http://www.djei.ie/commerce/consumer/CRDGuida
nce.pdf
 DG Justice Guidance document concerning Directive
2011/83/EU available at
http://ec.europa.eu/justice/consumermarketing/files/crd_guidance_en.pdf