Read part one of Brexit and UK consumer law.
The Department for Business, Energy and Industrial Strategy (BEIS) has published a draft version of the Draft Consumer Protection (Amendment) Regulations 2018: Brexit SI (the "Draft Regulations"). The Draft Regulations, when enacted, will make amendments to Primary and Subordinate Legislation that implement laws protecting consumers’ rights in the UK. Specifically, references to EU provisions in UK legislation will be amended/removed and the EU Online Dispute Resolution Regulation will be revoked.
Key changes under the Draft Regulations
The Consumer Rights Act 2015 (CRA)
The CRA provides essential contractual rights and remedies for consumers when they transact with businesses. Currently the CRA makes a distinction between contracts involving imports from EEA countries and contracts involving imports from non-EEA countries. As a result of the Draft Regulations, three keys changes will be implemented:
- Contracts with a choice of EEA state law as the governing law will be treated the same as choosing the law of other third countries.
- Contract terms that reflect international conventions to which the EU is a party will no longer be protected from the application of unfair terms’ rules, this will only apply to terms that reflect international conventions to which the UK is a party.
- Only statements made by an importer into the UK will be relevant to the implied term of satisfactory quality. Statements made by importers into the EEA will no longer be relevant.
The Consumer Protection from Unfair Trading Regulations 2008 (CPUTR)
CPUTR introduced a general prohibition on traders engaging in unfair commercial practices against consumers. The Draft Regulations allow for consumers to still have a right to redress when an importer engages in prohibited practices, but the responsibility will be only on UK importers, not EEA importers. Unfair terms relating to language and after-sales service will continue to operate in the same way.
Consumer Rights (Payment Surcharges) Regulations 2012 (CRR)
CRR (as amended) prohibits traders from imposing additional charges for the use of specific payment methods. Since their amendment earlier this year, there are prohibitions on charging fees to a consumer in most circumstances. Pursuant to the Draft Regulations, the protections against payment surcharges will apply only where the payment service providers used by the parties to the transaction are both located in the United Kingdom and not more broadly in the EEA.
Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (CCR)
CCR regulate pre-contractual information for goods and services and provide for consumer cancellation rights for certain types of contracts. The Draft Regulations will make changes to the sections that define which contracts are excluded from the requirement to comply with the information provision requirements, and the currency used in the model instructions for cancellation will be changed. All references to euros will be changed to pounds and excluded contracts will be defined by cross referencing to UK statutory instruments.
Alternative Dispute Resolution
Alternative Dispute Resolution for Consumer Disputes (Competent Authorities and Information) Regulations 2015 (ADR)
These implement the provisions of the EU Directive 2013/11/EU on alternative dispute resolution. After Brexit, the list of ADR entities published by the European Commission will now be the responsibility of the UK Secretary of State, who will no longer be required to send the list of ADR entities and a report to the European Commission. The requirement for ADR entities to offer cross border resolution is removed.
Regulation (EU) 524/2013 – Online Dispute Resolution (ODR)
These have a similar aim to ADR, establishing an online tool that allows consumers to make a complaint against a trader where goods or services have been bought online and any business selling to consumers online is required to maintain a link to the ODR platform maintained by the EU Commission. As a result of the Draft Regulations, The EU Regulation on Online Dispute Resolution will be revoked. This will also remove the requirement for business to maintain a link to the ODR platform so if businesses have made changes to terms and conditions to include references to ODR, then these will need to be updated.
Effects on Consumers
In general, UK consumers will continue to enjoy similar consumer rights after Brexit but only under UK law and within the UK jurisdiction. Where an EU or EEA dimension to any legislation exists/existed, this will no longer apply.
The rights of UK consumers to enforce rights before the courts of EU Member States is unclear and even if possible, this is unlikely to be cost-effective.
Implementation of the Draft Regulations
The Draft Regulations will be effective from exit day and demonstrate the Government's approach to ensure that current legislation due to EU membership continues to be operative post Brexit and to ensure that UK consumers are no worse off, whilst removing the influence, jurisdiction and reference to EU Member States.