Enforcement fiche for IrelandB a c k
|I. ADMINISTRATIVE ENFORCEMENT|
|Which administrative mechanisms are available to enforce the UCP Directive?||
In Ireland, the Directive is implemented by the Consumer Protection Act 2007 which came into effect on 1 May 2007. The Act provided for the establishment of the National Consumer Agency (NCA), it put the EU Directive on unfair commercial practices into effect under national law and it made various changes to Irish consumer laws. It also repealed certain older consumer laws, some of which dated from the 19th century. The Act has been fully implemented apart from Sections 48 and 49. These Sections deal with the prohibition of credit card surcharges, and surcharges imposed on certain other payment methods. The Government has stated its view that these sections are not compatible with EU law. The NCA was set up on an interim basis in May 2005 and established on a statutory basis in May 2007. It has a general function of promoting consumer welfare and is responsible for investigating, enforcing and encouraging compliance with consumer law. It has set up a website for consumers at www.consumerconnect.ie.
|Who can file administrative complaints?||
Administrative complaints to be filed by every natural or legal person. There is no need to prove a legitimate interest. Anyone, including the NCA, may apply to the Irish Circuit Court or the Irish High Court for an order prohibiting any practice (with some small exceptions) which is unlawful under the Consumer Protection Act 2007. If an individual takes such an action, notice must be given to the trader and to the NCA. It is not necessary to show loss or damage as a result of the trader's actions.
|Do any specific procedural requirements apply to filing administrative complaints?||
The Consumer Protection Act 2007 provides for a number of enforcement mechanisms to be available to the NCA. If the NCA considers that there is a case for seeking an injunction or a prohibition order against a trader, it may (as a first step) accept a written undertaking from the trader containing whatever terms and conditions the NCA thinks are appropriate. If the trader fails to comply with the undertaking, then the NCA may look for a prohibition order. The NCA may serve a compliance notice on a trader whom it considers to have engaged in a prohibited activity. The trader has 14 days in which to appeal the notice. If the trader fails to comply, the NCA may take criminal proceedings. The NCA has the power to impose on-the-spot penalties for offences relating to the display of prices. It is also required to keep a Consumer Protection List and to publish this list at any time and in any form it considers appropriate. This is a list of traders convicted of criminal offences, subject to court orders, bound by an undertaking, served with a compliance notice, or subject to a fixed payment notice. The NCA may apply to the courts for an order requiring a trader who has been convicted of a number of specified offences to publish, at his or her expense, a corrective statement in respect of the facts relating to the offence
|Do the administrative authorities have an obligation to investigate the complaint?||
The NCA deals with complaints on a risk basis, with an emphasis on those areas where there is the greatest potential for consumer loss or detriment. This risk-based approach is aimed at a maximisation of resources, tackling areas where there is large consumer detriment, for example, the need for fair contract terms in consumer contracts or the problem of "car clocking" (fraudulently amending a cars mileage records to deceive a customer as to its value).
|Are there any specific requirements regarding the provision of evidence to the competent authorities?||
The Consumer Protection Act 2007 does not contain such specific requirements. In broad terms, the Act provides that a range of unfair, misleading and aggressive trading practices are banned if they would be likely to cause appreciable impairment of the average consumer's ability to make an informed choice in relation to the product concerned and would cause the average consumer to make a decision about a transaction that they would not otherwise make. Practices are banned, therefore, if they meet two conditions: (a) they are unfair, misleading or aggressive, (b) they are likely to impair your consumer's choice.
|II. ENFORCEMENT THROUGH COURT ACTION|
|Which court actions are available to enforce the UCP Directive?||
Section 71 of the Consumer Protection Act enables the NCA apply to the Irish Circuit Court or the Irish High Court for an order prohibiting a trader from committing or engaging in a prohibited act or practice. Prosecutions in respect of breaches of the Act can be taken within two years from the time the offence has occurred. On summary conviction a fine not exceeding €3,000 or imprisonment for 6 months or both may be imposed.
|Who can start a court action?||
Under section 74 of the Consumer Protection Act, a consumer who has been materially affected by the actions of a trader, may apply to the District, Circuit or High Court for damages including exemplary damages. Anyone, including the NCA, may apply to the Circuit Court or the High Court for an order prohibiting any practice (with some small exceptions) which is unlawful under the Consumer Protection Act 2007. If an individual takes such an action, notice must be given to the trader and to the NCA. It is not necessary to show loss or damage as a result of the trader's actions.
|Can court actions be initiated by competitors?||
Yes, in certain situations. If a comparative advertiser does not comply with the conditions under the Act then a competitor can bring a private action before the Irish Courts, which have jurisdiction to make orders: - prohibiting the comparative advertisement and/or - requiring a corrective statement to be published at the comparative advertiser's expense. A prohibition order under Section 71 is the sole remedy available to a competitor under the Act as there is no express provision made for damages. However, costs may be awarded against the comparative advertiser in respect of any action taken by a competitor under the Regulations. Damages may be awarded against a comparative advertiser if an action is successfully taken by a competitor for breaches of other laws such as trademark infringement, passing-off or malicious falsehood, or by a consumer for a misleading commercial practice under the Consumer Protection Act 2007. In respect of the latter, certain misleading commercial practices may also incur criminal liability.
|Can the case be handled through an accelerated procedure?||
Not to the best of our knowledge.
|Are there any specific requirements regarding the provision of evidence to the court?||
The usual rules of evidence of Irish courts apply.
|What are the possible civil sanctions and remedies for the infringement of the UCP provisions?||
The NCA has a range of powers to help achieve compliance. The civil sanctions are undertakings and prohibition orders
|What are the possible criminal sanctions for the infringement of the UCP provisions?||
The Act provides for a range of penalties for the various offences. The maximum fine for a first offence is €3,000 for summary convictions and €60,000 for convictions on indictment. There are higher fines for repeat offenders. Offenders may be imprisoned for up to 24 months on top of or as an alternative to the above range of fines. If a trader is convicted of an offence under this Act the Agency may, on behalf of an aggrieved consumer who consents to the application, apply to the court for a compensation order requiring the trader to pay an amount of money the court considers appropriate compensation in respect of any loss or damage to that consumer resulting from that offence.
|What are the possible administrative sanctions for the infringement of the UCP provisions?||
The NCA has the power to take prosecutions against non-compliant traders. The NCA has the power to appoint authorised officers in order to enforce consumer legislation. These authorised officers have powers to pursue their investigations. These powers include the right to enter premises, get documentation and other evidence in relation to any trade or business which is being investigated. They also have the right to be accompanied by the Gardaí (the Irish police force), if necessary and apply to the courts for search warrants.
Authorised officers have additional powers with respect to textiles (SI 142 of 2012).
|What are the contractual consequences of an administrative order or a judgement relating to an unfair commercial practice on an individual transaction?||
Although the Act does not explicitly specify contractual consequences for breach of the Act, a number of sections allow for the possibility of alteration of contracts entered into. Section 71 of the Act deals with the Courts powers to grant civil relief by way of prohibition orders. In making an order under this section, the court may impose terms or conditions in the order that the court considers appropriate. Section 73 deals with undertakings taken with the Agency and includes an option to obtain an undertaking to compensate consumers or a class of consumers, including reimbursing any money or returning any other property or thing received from consumers in connection with a consumer transaction. Section 75 empowers officers of the NCA to issue Compliance Notices to those breaching the Act. These notices may direct the person to remedy the contravention or the matters occasioning that notice, including any other requirement that the authorised officer considers appropriate in order to remedy the contravention or matter.
|How can consumers get redress/compensation (e.g. through collective actions)?||
Ireland does not have a class action procedure as such. There is a procedure known as a ‘representative action’ allowing one action to be brought to resolve issues on behalf of different parties with the same interest. However, each claimant must agree to participate before they will be bound by the outcome. There are limitations on the procedure, including the reliefs available. While declaratory relief and injunctive relief might arise from the resolution of common issues, separate claims may still be needed to resolve individual damages claims and to deal with issues which are claimant-specific. On occasion the Irish government has established ad hoc arrangements to resolve particular multi-plaintiff issues which could have been class actions in other jurisdictions. This has generally occurred where the State is a principal defendant, or a multiplicity of similar claims would lead to a proliferation of legal costs.
|Can the administrative authorities or the courts require the publication of their decisions?||
The NCA has the power to publish information respecting certain persons. (Chapter 6 of the 2007 Act). Under Section 86 information on the Consumer Protection List may be published: this includes persons who have been fined, who have given undertakings, persons whom a compliance notice takes effect against, and persons who make a payment to the Agency pursuant to a fixed payment notice.
|IV. OTHER TYPES OF ENFORCEMENT|
|Are there any self-regulatory enforcement systems in your jurisdiction that deal with aspects of the UCP Directive?||
The Advertising Standards Authority for Ireland ("ASAI")is an independent self-regulatory body set up and financed by the advertising industry and committed, in the public interest, to promoting the highest standards of marketing communications, that is, advertising, promotional marketing and direct marketing. The objective is to ensure that all commercial marketing communications are 'legal, decent, honest and truthful'. The rules are set out in the Code of Standards for Advertising, Promotional and Direct Marketing, drawn up by the Board of ASAI following consultation with all relevant interests including the public, advertisers, agencies and media, consumer representatives and Government Departments.
|Are there any mediating services that deal with aspects of the UCP Directive (e.g., an ombudsman)?||
The Office of the Ombudsman in Ireland deals with Government departments and not advertising/consumer affairs which fall within the remit of the NCA.