The Consumer Rights Act 2022 (theAct), was signed by the President on 7 November 2022 having completed its passage through both Houses of the Oireachtas on 26 October 2022. The Act represents the biggest overhaul of consumer rights law in the history of the State and will transpose a number of EU Directives including the Sale of Goods Directive; the Contracts for the Supply of Digital Content and Digital Services Directive; and the so-called 'Omnibus Directive' into Irish law. Since our last update earlier this year, following the publication of the Consumer Rights Bill (the Bill) in May 2022, a number of amendments were made to the text of the Bill prior to its enactment.
The timeline between publication of this Bill and its enactment was notably condensed, in particular given the wide ranging nature of the legislation. The focus of this briefing is to set out a high level summary of the some of the key provisions that were added to the Act during the legislative process.
Increased enforcement powers of the Commission for Communications Regulator (ComReg)
The Communications Regulations Act, 2002 is amended by the Act and now provides ComReg with increased enforcement powers insofar as they relate to the provision of electronic communications networks and electronic communications services.
These enforcement powers will be similar to those already available to the Competition and Consumer Protection Commission (CCPC) and include the power to issue prohibition orders and compliance notices along with the power to compel traders to provide undertakings where the actions of a trader constitutes a 'prohibited act or practice' under the Consumer Protection Act, 2007(as amended).
The pre-existing obligation on guarantors to ensure that guarantees are written in plain and intelligible language is maintained. The Act now includes an additional obligation which provides that guarantees must be expressed in "concise" language. This obligation is not provided for at an EU level but rather this is an additional requirement that the Irish legislature has included.
The Consumer Credit Act, 1995 is amended by the Act to extend these same obligations to commercial guarantees given in the context of hire purchase agreements.
Under the Act, a trader must ensure that the terms of a consumer contract are 'transparent' by making an assessment against a list of criteria. This criteria now includes an obligation that the terms of a consumer contract must be written concisely.
Exclusion or limitation of liability
The prohibition on traders excluding or limiting their liability in respect of certain statutory obligations was further extended in the Act. For example, where a trader has an obligation under the Act to deliver goods under a sales contract they cannot limit or exclude their liability. To do so, may constitute an offence under the Act.
Updates to digital content or digital services
In respect of digital content or digital service contracts, the Act provides that traders must inform consumers of the availability of, and supply consumers with, the relevant updates necessary to ensure that the digital content or digital service is in conformity with the contract. The Act also now places a further obligation on traders to inform a consumer of the consequences of failing to install any relevant update.
The Act clarifies the definition of 'motor vehicles' as including vehicles that do not require 'pedal power' to propel them, for example, bikes that can be solely powered by small engines attached to the crossbar. Also, only 'motor vehicles' that have a maximum design speed of at least 6 km/h fall within the definition so as to ensure that children's toys do not fall within the scope.
Once commenced, the Act will significantly modernise consumer protection law in Ireland by expressly providing for the regulation of contracts for the sale of goods with digital elements, as well as contracts for the supply of digital content and digital services. To ensure compliance with these new provisions, the Act provides for a number of new criminal offences, together with increased enforcement powers that will be available to the regulatory agencies caught within its ambit.
Responsibility for commencement rests with the Minister for Enterprise, Trade and Employment. The date for this is not yet set, and it remains to be seen if the Act be given binding legal effect all at once, or section-by-section.
There is no doubt that once commenced, the Act will have a wide ranging, practical and tangible impact on the regulation of relationships between traders and consumers and that those engaging with consumers will need to be in a position to comply with their enhanced obligations contained in this new framework.
Organisations should look at the Act without delay, assess which aspects of it impact their business, and make any necessary changes to relevant documentation (in particular customer facing documentation) and processes necessary to ensure compliance in this redefined consumer/trader landscape.