CCPC publishes its Consumer Protection List for 2020
On 9 March 2021, the Irish Competition and Consumer Protection Commission (CCPC) published its Consumer Protection List for the period 1 January to 31 December 2020. While 2020 has resulted in fewer enforcement actions for consumer protection breaches compared with 2019, the list published by the CCPC highlights: (i) the breadth of sanctions available for breaches of consumer laws (including the possibility of conviction); and (ii) the need for enhanced vigilance by online traders, in the face of increased scrutiny by the CCPC of e-commerce channels for compliance with consumer protection rules.
Statutory basis for the Consumer Protection List
The Consumer Protection List was published pursuant to the requirements of section 86 of the Consumer Protection Act 2007 (2007 Act). Section 86 provides for the publication by the CCPC of a list (typically appearing on an annual basis) setting out details of enforcement actions that have been taken in respect of specific legislative breaches, including details of the persons concerned. A diverse range of enforcement options is available in respect of breaches of consumer protection rules and particulars of such actions will feature on the CCPC's consumer protection list where they involve any of the following:
Enforcement actions detailed by the CCPC in its 2020 Consumer Protection List
One of the most prominent features of the Consumer Protection List is the marked diminution in the number of enforcement actions taken in 2020 compared to those included on the 2019 list. While 53 enforcement actions were featured on the list in 2019, this number has reduced by over 75% to 13 actions in 2020. This reduction is presumably attributable to the effects of the Covid-19 pandemic on the retail sector, which has seen many bricks and mortar stores close their premises for prolonged periods during 2020.
While a broad array of legislation falls within the CCPC's enforcement powers, the thirteen interventions detailed in the 2020 Consumer Protection List have a relatively narrow focus and concentrate on four principal categories:
(i) misleading or prohibited commercial practices under Part 3 of the 2007 Act
(ii) price display offences
(iii) breaches under the European Union (Consumer Information, Cancellation and Other Rights) Regulations 2013 (CRD Regulations)
(iv) breaches of Regulation (EU) No 524/2013 of the European Parliament and of the Council of 21 May 2013 on online dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Regulation on Consumer ODR).
Further details regarding the contraventions which have been the subject of enforcement actions in the course of 2020 are set out in figure 2 below.
Figure 2 – Enforcement Actions Included on 2020 Consumer Protection List
|
Type of Enforcement Action |
Details |
|---|---|
|
Conviction |
An individual was sentenced to four months imprisonment (suspended for two years) for: (i) engaging in a misleading commercial practice by providing false information to a consumer in relation to the mileage of a vehicle; and (ii) engaging in a prohibited commercial practice by holding himself out as a private seller rather than as a trader. In addition to compensation of €2,610 which had already been paid to the customer concerned, the relevant individual was ordered to pay €2,500 in costs to the CCPC. |
|
Undertakings |
Following investigations relating to the provision of false and misleading information to consumers in relation to the usage and prior history of cars, undertakings were provided to the CCPC by two traders active in the motor industry. The traders undertook, inter alia, to refrain from engaging in misleading commercial practices and to compensate the consumers concerned. |
|
Compliance Notices |
Five compliance notices were issued by the CCPC in the course of 2020. Two of the notices directed online traders to provide information with respect to consumers’ rights to customers with whom they concluded distance contracts, in accordance with the CRD Regulations. Two of the notices directed online traders to comply with Article 14(1) of the Regulation on Consumer ODR when entering online sales contracts with consumers. They required the traders concerned to provide on their website(s) an electronic link to the ODR platform which would be easily accessible to consumers. The final notice directed an online trader to make available the information requirements for distance contracts set out in the CRD Regulations to consumers before they were bound by a distance contract and to comply with all requirements of the CRD Regulations that related to his trading activities on a specific website and to any other websites/domain names owned and operated by him. |
|
Fixed Payment Notices |
Three fixed payment notices were issued to a retail trader for failure to display the prices of products that were offered for sale. In addition, notices were issued to a pub for failure to display a price list for drinks that were for sale and to an online trader for failure to make available a cancellation form to consumers before they were bound to a distance contract. |
Novel features of the 2020 Consumer Protection List
As in previous years, the automotive sector has attracted considerable scrutiny and several actions contained in the 2020 list concern the provision of misleading information to consumers in relation to second hand vehicles. However, a number of novel features are also to be observed in the 2020 list, most notably in relation to online channels and disguised trading.
Enhanced focus on breaches by online traders
- The Consumer Protection List demonstrates the enhanced emphasis which is being placed on breaches by online traders, as public health restrictions have resulted in the closure of retail outlets and e-commerce has emerged as an increasingly important channel for consumers. In addition to traditional causes of actions such as the provision of misleading information under Part 3 of the 2007 Act, actions have been pursued against online traders in 2020 in respect of breaches of the CRD Regulations and the Regulation on Consumer ODR. In two cases, the CCPC has also issued consumer warnings in relation to non-compliant websites.
Inspections of websites and online platforms
- In the preface to its 2020 list, the CCPC has revealed that it has been increasingly active in relation to inspections of websites during 2020. Its activities have included conducting inspections of over 50 websites to ensure adherence to legislative requirements relating to product pricing, consumer rights, e-commerce, unfair commercial practices, gift vouchers and online dispute resolution, and assessing a further 47 websites as part of a broader CCPC response to Covid-19. In addition to the inspections carried out by the CCPC unilaterally, it has also worked with its European counterparts in the context of an EU-wide sweep of Covid-19 related products on websites and online platforms to identify false claims and scam products. Written approaches have also been made by the CCPC to 11 of the largest online platforms in Ireland, advising them of their obligations under Irish consumer protection legislation.
First Irish prosecution for disguised trading
- Following an investigation by the CCPC (prompted by a consumer complaint), the first Irish conviction was secured against an individual for disguising his trader status in 2020. This involved the individual presenting himself as a private vehicle seller on a classified advertising platform, rather than as a trader who was acting in the course of his business. The conviction was secured under section 55(1)(x) of the 2007 Act, which prohibits a trader from making a representation or creating an impression that he or she is not acting for purposes related to the trader's trade, business or profession, when the trader is, in fact, so acting.
Conclusion
While 2020 saw a reduction in the number of enforcement actions for consumer protection breaches compared with equivalent figures for 2019, the most notable feature of the 2020 list for businesses is the shift in enforcement trends towards online channels. The CCPC has shown itself willing to scrutinise websites and online platforms for compliance with consumer protection requirements and to pursue those who are found to have breached their obligations to consumers when concluding online sales/distance contracts. The focus on digital platforms is likely to continue as retailers pivot towards online sales and as increasing number of consumers avail of e-commerce channels.
In view of the range of enforcement tools available to the CCPC and the consequent financial and reputational risks, retailers should remain alive to their consumer protection obligations when concluding contracts with customers, whether on-premises or online. Further advice for businesses regarding compliance with consumer protection requirements at an Irish and EU level can be obtained by contacting any member of A&L Goodbody's EU, Competition and Procurement team.
Date published: 23 March 2021