Irish Laws on Consumer Protection & Product Safety, Schemes and Mind Maps of Business

Download Irish Laws on Consumer Protection & Product Safety and more Schemes and Mind Maps Business in PDF only on Docsity! ———————— Number 19 of 2007 ———————— CONSUMER PROTECTION ACT 2007 ———————— ARRANGEMENT OF SECTIONS PART 1 Preliminary Matters Section 1. Short title and commencement. 2. Interpretation and application. 3. Regulations. 4. Repeals. 5. Expenses. PART 2 National Consumer Agency Chapter 1 The Agency 6. Establishment day. 7. Establishment of Agency. 8. Functions of Agency. 9. Review of legislation. 10. Membership of Agency. 11. Chairperson of Agency. 12. Meetings and procedures of Agency. 13. Committees. 14. Chief executive. 15. Functions of chief executive. 1 2 [No. 19.] [2007.]Consumer Protection Act 2007. 16. Attendance of chief executive before Committee of Public Accounts. 17. Attendance of chief executive before other Oireachtas Committees. 18. Membership of either House of the Oireachtas, European Parliament or local authority. 19. Indemnity for members of Agency. 20. Strategy statement and work programme of Agency. 21. Provision for co-operation between Agency and certain pre- scribed bodies. 22. Reports and information to Minister. 23. Accounts and audits. 24. Advances by Minister to Agency. 25. Disclosure of interests. 26. Power to enter into contracts and to engage consultants and advisers. 27. Premises of Agency. 28. Seal of Agency. 29. Power to borrow. 30. Authorised officers of Agency. 31. Disclosure of information relating to offences. 32. Prohibition on unauthorised disclosure of information. 33. Amendment of Freedom of Information Act 1997. Chapter 2 Staff of Agency 34. Staffing. 35. Transfer of employment of certain persons to Agency. 36. Superannuation. Chapter 3 Transfer of Functions, etc. 37. Transfer of functions to Agency. 38. Preservation of existing contracts. 39. Transfer of assets and liabilities. 40. References in certain other enactments to Director or Office of Director. [2007.] [No. 19.]Consumer Protection Act 2007. 82. Court may order convicted person to publish corrective statement. 83. Summary trial of persons indicted. 84. Agency may institute summary proceedings for offences. Chapter 5 Fixed Payment Notices 85. Fixed payment notices for price display and product pricing offences. Chapter 6 Publication of Trader Names (Consumer Protection List) 86. Agency may publish information respecting certain persons. PART 6 Miscellaneous 87. Protections for persons reporting breaches. 88. Voluntary submission of codes for Agency review and approval. 89. Admissibility of codes of practice in proceedings. 90. Agency guidelines. 91. Saving for certain contracts. 92. Saving of current price display orders. 93. Transitional. 94. Amendment of Central Bank Act 1942. 95. Amendment of Sale of Goods and Supply of Services Act 1980. 96. Saving for other rights person may have. 97. Amendment of Industrial Development Act 1993. 98. Amendment of Casual Trading Act 1995. 99. Amendment of Hallmarking Act 1981. 100. Power of officer of customs and excise to detain unsafe goods. 101. Directions under certain instruments respecting product safety: actions of third parties. 102. Admissibility of certain laboratory tests. 5 6 [No. 19.] [2007.]Consumer Protection Act 2007. SCHEDULE 1 Existing Enactments PART 1 Enactments — Acts of the Oireachtas PART 2 Enactments made under the European Communities Act 1972 which are existing Enactments SCHEDULE 2 Repeals SCHEDULE 3 References in Certain Acts and Instruments to Director or Office of Director PART 1 References in Certain Acts to Director of Consumer Affairs or Office of the Director of Consumer Affairs PART 2 References in Certain Instruments to Director of Consumer Affairs or Office of the Director of Consumer Affairs SCHEDULE 4 Enactments for the purpose of section 73 (Undertakings with the Agency) SCHEDULE 5 Enactments for the purpose of section 75 (Compliance notices) SCHEDULE 6 Redress for contravention of section 87 SCHEDULE 7 Statutory Instruments for the purposes of sections 101 and 102 (Directions respecting product safety and admissibility of laboratory tests) SCHEDULE 8 Directives for the purpose of section 102 (Admissibility of laboratory tests) ———————— [2007.] [No. 19.]Consumer Protection Act 2007. Acts Referred to Agricultural Produce (Fresh Meat) Act 1930 1930, No. 10 Agricultural Produce (Potatoes) Act 1931 1931, No. 26 Anglo-Portuguese Commercial Treaty Act 1914 5 & 6 Geo. 5., c. 1 Anglo-Portuguese Commercial Treaty Act 1916 6 & 7 Geo. 5., c. 39 Carer’s Leave Act 2001 2001, No. 19 Casual Trading Act 1995 1995, No. 19 Central Bank Act 1942 1942, No. 22 Central Bank and Financial Services Authority of Ireland Act 2003 2003, No. 12 Central Bank and Financial Services Authority of Ireland Act 2004 2004, No. 21 Companies Act 1990 1990, No. 33 Competition Act 2002 2002, No. 14 Comptroller and Auditor General (Amendment) Act 1993 1993, No. 8 Consumer Credit Act 1995 1995, No. 24 Consumer Information Act 1978 1978, No. 1 Criminal Procedure Act 1967 1967, No. 12 Electronic Commerce Act 2000 2000, No. 27 European Communities (Amendment) Act 1993 1993, No. 25 European Communities Act 1972 1972, No. 27 European Parliament Elections Act 1997 1997, No. 2 Food Safety Authority of Ireland Act 1998 1998, No. 29 Freedom of Information Act 1997 1997, No. 13 Hallmarking Act 1981 1981, No. 18 Industrial Development Act 1986 1986, No. 9 Industrial Development Act 1993 1993, No. 19 Interpretation Act 2005 2005, No. 23 Investment Funds, Companies and Miscellaneous Pro- visions Act 2006 2006, No. 41 Liability for Defective Products Act 1991 1991, No. 28 Local Government Act 2001 2001, No. 37 Merchandise Marks Act 1887 50 & 51 Vic., c. 28 Merchandise Marks Act 1891 54 & 55 Vic., c. 15 Merchandise Marks Act 1911 1 & 2 Geo. 5., c. 31 Merchandise Marks Act 1931 1931, No. 48 Merchandise Marks Act 1970 1970, No. 10 Merchandise Marks Acts 1887 to 1978 Minimum Notice and Terms of Employment Acts 1973 to 2005 National Archives Act 1986 1986, No. 11 National Standards Authority of Ireland Act 1996 1996, No. 28 Occasional Trading Act 1979 1979, No. 35 Official Languages Act 2003 2003, No. 32 Ombudsman Act 1980 1980, No. 26 Ombudsman for Children Act 2002 2002, No. 22 Organisation of Working Time Act 1997 1997, No. 20 Packaged Goods (Quantity Control) Act 1980 1980, No. 11 Package Holidays and Travel Trade Act 1995 1995, No. 17 Parental Leave Acts 1998 and 2006 Pawnbrokers Act 1964 1964, No. 31 7 Pt.1 S.2 10 [No. 19.] [2007.]Consumer Protection Act 2007. “code of practice” means any code, agreement or set of rules or standards that is not imposed by or under an enactment but purports to govern or define commercial practices of one or more traders (whether generally or in respect of a particular trade, business or professional sector or one or more commercial practices) who agree, commit or undertake to abide or be bound by such rules or standards; “commercial practice” means any conduct (whether an act or omission), course of conduct or representation by the trader in relation to a consumer transaction, including any such conduct or representation made or engaged in before, during or after the con- sumer transaction; “consumer” means a natural person (whether in the State or not) who is acting for purposes unrelated to the person’s trade, business or profession; “consumer transaction” means a promotion or supply of a product to a consumer; “contravene”, in relation to a provision, includes fail to comply with the provision; “Directive” means Directive No. 2005/29/EC of the European Parlia- ment and of the Council of 11 May 20051 concerning unfair business- to-consumer commercial practices in the internal market and amend- ing Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No. 2006/2004 of the European Parliament and of the Council; “Director” means the Director of Consumer Affairs; “enactment” means an Act (within the meaning of the Interpretation Act 2005) or any instrument made under a power conferred by an Act (within that meaning); “establishment day” means the establishment day appointed under section 6; “existing enactments” means the following enactments, to the extent to which those enactments confer functions on the Director which are transferred to the Agency pursuant to section 37: (a) food legislation, within the meaning of the Food Safety Authority of Ireland Act 1998; (b) the enactments specified in Part 1 of Schedule 1 and any instruments made under those enactments for the time being in force; and (c) the regulations made under the European Communities Act 1972 for the time being in force specified in Part 2 of Schedule 1; “financial year” means a period of 12 months ending on 31 December in any year and, in the case of the first financial year of the Agency, means the period commencing on the establishment day and ending on 31 December in the year in which the establishment day falls; 1O.J. No. L.149, 11/06/2005, p. 22. [2007.] [No. 19.]Consumer Protection Act 2007. “goods” means real or personal property of any nature or descrip- tion, and includes— (a) ships, aircraft or other vehicles, (b) animals, (c) minerals, trees or crops, whether on, under or attached to land or not, (d) gas, electricity or water, (e) computer software, (f) tickets or like evidence of a right to be in attendance at a particular place at a particular time or times or a right of transportation, (g) any voucher, coupon or other document or thing intended to be used as a substitute for money in the payment, in whole or in part, for a product or otherwise exchanged for a product, and (h) any description of interest (present or future, vested or contingent) or obligation arising out of or incidental to goods; “goods or services” means goods or services or both; “invitation to purchase” means a representation by the trader in a consumer transaction that— (a) indicates characteristics of the product and includes its price, and (b) enables the consumer to purchase the product; “Minister” means the Minister for Enterprise, Trade and Employment; “prescribed” means prescribed by regulations made by the Minister; “product” means goods or services; “public body” means— (a) a board, authority or other body, other than a company under the Companies Acts, established by or under statute; (b) a company under the Companies Acts in which all the shares are held— (i) by or on behalf of a Minister of the Government, or (ii) by directors appointed by a Minister of the Government; (c) a company under the Companies Acts in which all the shares are held by a board, authority or body referred to in paragraph (a) or by a company referred to in para- graph (b); 11 Pt.1 S.2 Pt.1 S.2 12 [No. 19.] [2007.]Consumer Protection Act 2007. “purchase” means to buy, obtain or acquire by any method and includes accept, receive, be vested with, lease, take possession, con- trol or occupation of, and agree to do any of those things (but does not include expropriate); “relevant State” means a state that is a contracting State to the EEA Agreement within the meaning of the European Communities (Amendment) Act 1993; “relevant statutory provisions” means— (a) existing enactments, (b) the Merchandise Marks Act 1970 and any instruments made under that Act for the time being in force, (c) certain provisions of the Prices Act 1958 referred to in section 92 and the enactments specified in subsection (1)(a) to (e) of that section to the extent to which they remain in force for the purposes of this Act, (d) the enactments specified in subsection (1)(a) to (c) of section 93, and (e) this Act and any instrument made under this Act for the time being in force; “representation” includes— (a) any oral, written, visual, descriptive or other represen- tation by a trader, including any commercial communi- cation, marketing or advertising, and (b) any term or form of a contract, notice or other document used or relied on by a trader in connection with a con- sumer transaction; “services” means any service or facility provided for gain or reward or otherwise than free of charge, including, without limitation— (a) services or facilities for— (i) banking, insurance, grants, loans, credit or financing, (ii) amusement, cultural activities, entertainment, instruc- tion, recreation or refreshment, (iii) accommodation, transport, travel, parking or stor- age, or (iv) the care of persons, animals or things, (b) membership in a club or organisation or any service or facility provided by the club or organisation, and (c) any rights, benefits, privileges, obligations or facilities that are, or are to be provided, granted or conferred in the course of services, but does not include services provided under a contract of employment; [2007.] [No. 19.]Consumer Protection Act 2007. 7.—(1) On the establishment day there shall stand established a body to be known as an Ghnı́omhaireacht Náisiúnta Tomhaltóirı́ or, in the English language, the National Consumer Agency and in this Act referred to as the Agency, to perform the functions conferred on it by this Act. (2) The Agency shall be a body corporate with perpetual suc- cession and an official seal and shall have power— (a) to sue, and may be sued, in its corporate name, (b) to acquire, hold and dispose of land or an interest in land, with the approval of the Minister given with the consent of the Minister for Finance, and (c) to acquire, hold and dispose of any other property, with the approval of the Minister given with the consent of the Minister for Finance. (3) Subject to this Act, the Agency shall be independent in the performance of its functions. 8.—(1) The functions of the Agency are— (a) to promote and protect the interests and welfare of consumers, (b) to enforce the relevant statutory provisions, including by the prosecution of offences, by way of summary pro- ceedings, (c) to encourage compliance with the relevant statutory provisions, (d) to investigate instances of suspected offences under any of the relevant statutory provisions, (e) at its discretion, to refer cases to the Director of Public Prosecutions where the Agency has reasonable grounds for believing that an indictable offence under any of the relevant statutory provisions has been committed. (2) This section and the other provisions of this Part are without prejudice to section 94 (respecting the concurrent vesting in the Cen- tral Bank and Financial Services Authority of Ireland of certain func- tions under this Act). (3) Without prejudice to the generality of subsection (1), in per- forming its functions under this Act, the Agency— (a) may, and shall when requested by the Minister, advise and, as appropriate, make recommendations to the Govern- ment, the Minister, any other Minister of the Govern- ment or any Minister of State, in relation to any proposals for legislative change, or any other policy matters, con- cerning, or which would be likely to impact on, consumer protection and welfare, (b) may, and shall when requested by the Minister, and after consultation with such persons as it considers appropriate having regard to the proposals to be submitted, submit to the Minister, any other Minister of the Government or 15 Pt.2 Establishment of Agency. Functions of Agency. Pt.2 S.8 16 [No. 19.] [2007.]Consumer Protection Act 2007. any Minister of State any proposals it considers appro- priate for amendment of any enactment, or for new enactments, concerning consumer protection and welfare, (c) shall advise and, as appropriate, make recommendations to the Government, the Minister, any other Minister of the Government, any Minister of State, any public body or any prescribed body within the meaning of section 21 in relation to any matter concerning, or which the Agency considers would be likely to impact on, consumer protec- tion and welfare, (d) shall foster and promote contacts, co-operation and the exchange of information with and shall consult with con- sumer groups and representatives, (e) shall co-operate with other competent authorities whether in the State or elsewhere charged with responsibility for the enforcement of laws relating to consumer protection and welfare or the promotion of consumer protection and welfare, (f) shall promote the development of alternative dispute res- olution procedures as a means of resolving disputes aris- ing out of consumer transactions, (g) shall conduct or commission research, studies and analysis on matters relating to the functions of the Agency and, as it considers appropriate, publish in the form and man- ner that the Agency thinks fit, such findings as it con- siders appropriate, (h) shall promote public awareness and conduct public infor- mation campaigns for the purpose of educating and advis- ing consumers in relation to consumer protection and welfare, (i) shall promote educational initiatives and activities relating to consumer information and awareness and advise, when requested, the Minister or any other Minister of the Government, Departments of State or any public body whose activities are concerned with matters relating to any of the purposes of this Act, and any educational or training institution, (j) for the purposes of performing its functions under para- graphs (g) to (i), may, through the provision of financial or other resources, support the activities relating to con- sumer protection and welfare of such voluntary bodies as the Agency considers appropriate, (k) shall review and approve codes of practice in accordance with section 88, (l) shall prepare and publish guidelines to traders in accord- ance with section 90, (m) shall promote and encourage the establishment by a trader or traders, whether generally or in respect of a particular service or services, of quality assurance schemes, that is to say schemes the purpose of which is— [2007.] [No. 19.]Consumer Protection Act 2007. (i) to maintain and improve the quality and reliability of the service or services provided to consumers, and (ii) to enable consumers to identify traders who meet the requirements of the scheme concerned, (n) shall perform the functions assigned to the Director under the existing enactments and transferred to the Agency pursuant to section 37. (4) The Agency shall have all such powers as are necessary or expedient for the performance of its functions. (5) The Agency may delegate the performance of any of its func- tions to any member of the Agency or to any member of its staff, including the chief executive, duly authorised in that behalf by the Agency. (6) Nothing in this section or any other provision of this Act imposes a duty on the Agency to consider whether to investigate a matter relating to Part 3 that is referred to it by a trader but the Agency may, in the case of a matter so referred to it, consider whether to do so (and, accordingly, may proceed to investigate the matter) where it is satisfied the matter may affect the interests and welfare of consumers. 9.—(1) The Minister may consult the Agency regarding proposals for legislation relating to consumer protection and welfare. (2) The Agency shall— (a) keep under review the relevant statutory provisions, (b) submit, from time to time, to the Minister or such other Minister of the Government having responsibility for any other statutory provisions relating to, or which impact on, consumer protection and welfare any proposals that it considers appropriate relating to any of the relevant statutory provisions or any other statutory provisions or for making or revoking any instruments under those provisions, (c) undertake such reviews of the relevant statutory pro- visions as the Minister may direct, and (d) assist in the preparation of such draft legislation as the Minister may direct. (3) Before submitting proposals to the Minister or any other Mini- ster of the Government, as the case may be, the Agency shall consult any other person who, it appears to the Agency, is appropriate in the circumstances to be consulted or whom the Minister or the other Minister of the Government, as the case may be, directs is to be consulted. 10.—(1) The Agency shall consist of the following members: (a) a chairperson; and (b) 12 ordinary members. 17 Pt.2 S.8 Review of legislation. Membership of Agency. Pt.2 S.12 Committees. 20 [No. 19.] [2007.]Consumer Protection Act 2007. (3) The quorum for a meeting of the Agency shall be 5. (4) At a meeting of the Agency— (a) the chairperson of the Agency shall, if present, be the chairperson of the meeting, and (b) if and so long as the chairperson of the Agency is not present or if the office of chairperson is vacant, the members of the Agency who are present shall choose one of their number to be the chairperson of the meeting. (5) Each member of the Agency (including the chairperson of the meeting concerned) present at a meeting shall have a vote. (6) At a meeting of the Agency, a question on which a vote is required shall be determined by a majority of votes of the members of the Agency present and voting on the question and, in the case of an equal division of votes, the chairperson of the meeting shall have a second or casting vote. (7) Subject to this Act, the Agency shall regulate, by standing orders or otherwise, the procedure and business of the Agency. 13.—(1) The Agency may establish committees— (a) to assist and advise the Agency on matters relating to any of its functions or on such matters as the Agency may from time to time determine, or (b) to perform such functions of the Agency as may be del- egated by it from time to time. (2) A committee shall consist of a chairperson and such number of other members as the Agency may determine and may include persons who are not members of the Agency or of its staff. (3) The chairperson and other members of a committee shall be appointed by the Agency. (4) The Agency, when appointing a member of a committee, shall— (a) have regard to the range of qualifications and experience necessary for the proper and effective discharge of the functions of the committee, (b) have regard to the desirability of an equitable balance between men and women in the composition of the committee, (c) fix the member’s period of membership, and (d) fix the terms of his or her membership. (5) The members of a committee may be paid by the Agency such fees as the Agency may determine, subject to the consent of the Minister and the Minister for Finance. (6) A member of a committee may be removed at any time from membership of the committee by the Agency. [2007.] [No. 19.]Consumer Protection Act 2007. (7) The Agency may at any time dissolve a committee. (8) The Agency may regulate the procedure and business of a committee but, subject to any such regulation, a committee may regulate its own procedure and business. (9) A committee may act notwithstanding a vacancy or vacancies in its membership. 14.—(1) There shall be a chief executive officer of the Agency who shall be known, and is referred to in this Act, as the chief executive. (2) The chief executive shall, subject to subsection (3), be appointed by the Agency with the approval of the Minister and may, with the approval of the Minister, be removed from office for stated reasons by the Agency. (3) Where a competition to appoint a chief executive is held prior to the establishment day the successful candidate may be appointed by the Minister as the chief executive designate of the Agency. (4) The chief executive— (a) shall hold office under a written contract of service (which contract may be renewed) for such period, not being more than 5 years, as is specified in the contract, subject to such terms and conditions (including terms and con- ditions relating to remuneration, allowances for expenses and superannuation) as are so specified, being terms and conditions which are determined from time to time by the Agency with the approval of the Minister given with the consent of the Minister for Finance, and (b) shall be paid out of monies at the disposal of the Agency. (5) The chief executive shall not hold any other office or occupy any other position in respect of which emoluments are payable, or carry on any business, without the consent of the Agency and the approval of the Minister. (6) The chief executive is subject to the control of the members of the Agency and, except as regards voting at meetings of the Agency, is required to comply with any lawful directions given by those members with respect to the carrying out of the chief execu- tive’s functions. (7) The person who, immediately before the establishment day, holds the position of chief executive designate of the Agency shall, on the establishment day, become the chief executive and shall hold such office until such time as the Agency appoints a chief executive under subsection (2). (8) A person who was the chief executive shall not, for a period of 12 months following his or her resignation, removal or retirement from office, hold any other office or employment or act as a consult- ant where he or she is likely to use or disclose information acquired by him or her in the performance of his or her functions as chief executive. (9) Notwithstanding subsection (8), a person who was the chief executive shall not be precluded from— 21 Pt.2 S.13 Chief executive. Pt.2 S.14 Functions of chief executive. Attendance of chief executive before Committee of Public Accounts. 22 [No. 19.] [2007.]Consumer Protection Act 2007. (a) holding any office or employment in the Civil Service or any public body, or (b) acting as a consultant to the Agency, the Minister or any other Minister of the Government, during the period referred to in that subsection. 15.—(1) The chief executive shall carry on, manage and control generally the staff, administration and business of the Agency and shall perform such other functions as may be conferred on him or her by or under this Act or as may be determined by the Agency. (2) The chief executive may do all such acts or things as are neces- sary or expedient for the purposes of the exercise of his or her func- tions under this Act. (3) The chief executive shall advise the Agency in relation to the performance of the functions of the Agency and shall make any proper proposals to the Agency on any matter relating to the activi- ties of the Agency. (4) The chief executive shall be responsible to the Agency for the performance of his or her functions and the implementation of the Agency’s policies. (5) The chief executive shall provide the Agency with such infor- mation, including financial information, in relation to the perform- ance of his or her functions as the Agency may require. (6) Subject to subsection (7), the chief executive may perform such of his or her functions as he or she may deem proper through or by any member of staff of the Agency duly authorised by the chief executive in that behalf. (7) (a) The functions of the chief executive may be performed in his or her absence or when the position of chief executive is vacant by such member of the staff of the Agency as may from time to time be designated for that purpose by the Agency. (b) A member of staff of the Agency designated under para- graph (a) shall have all the powers, rights and duties con- ferred on the chief executive by this Act and each refer- ence in this Act to the chief executive shall be deemed to include a reference to such member of staff. 16.—(1) The chief executive shall, whenever he or she is so required by the committee of Dáil Éireann established under the Standing Orders of Dáil Éireann to examine and report to Dáil Éireann on the appropriation accounts and reports of the Comptrol- ler and Auditor General, give evidence to that committee on— (a) the regularity and propriety of the transactions recorded or required to be recorded in any book or other record of account subject to audit by the Comptroller and Auditor General which the Agency is required by or under statute to keep, (b) the economy and efficiency of the Agency in the use of its resources, [2007.] [No. 19.]Consumer Protection Act 2007. (d) specify the manner in which the Agency proposes to assess its performance in respect of the objectives referred to in paragraph (a), taking account of relevant performance indicators (financial and non-financial), (e) be prepared in the form and manner that the Minister may from time to time direct, and (f) include any other matters that the Minister may from time to time direct. (3) When preparing the strategy statement, the Agency may con- sult such persons as it considers appropriate. (4) As soon as practicable after a strategy statement has been sub- mitted to the Minister under subsection (1), the Minister shall cause a copy of the strategy statement to be laid before each House of the Oireachtas and the strategy statement shall be published in the form and manner that the Agency considers appropriate. (5) The Agency shall prepare and submit to the Minister, at least 2 months before the commencement of each financial year, a work programme relating to the discharge of its functions, including— (a) having regard to the strategy statement, the objectives of the Agency for that year and its strategy for achieving those objectives, (b) the priorities of the Agency for that year, having regard to those objectives and its available resources, and (c) any other matters that the Minister may from time to time specify when issuing directions or guidelines under sub- section (6). (6) The Minister may, from time to time, issue directions or guide- lines to the Agency concerning the preparation of the work prog- ramme and the Agency shall comply with those directions and pre- pare the work programme in accordance with those guidelines. 21.—(1) As soon as practicable after the commencement of this section, there shall be entered into between the Agency and every one of the prescribed bodies one or more agreements for the pur- poses of— (a) facilitating co-operation between the Agency and the pre- scribed bodies in the performance of their respective functions in so far as they relate to issues of consumer protection and welfare, (b) avoiding duplication of activities by the Agency and any of the prescribed bodies, (c) enabling the Agency to be consulted in relation to any decisions by prescribed bodies which affect consumers, (d) where appropriate, conducting joint studies or analysis of matters relating to consumer protection or issues of con- cern to consumers, and each such agreement that is entered into is referred to in this section as a “co-operation agreement”. 25 Pt.2 S.20 Provision for co- operation between Agency and certain prescribed bodies. Pt.2 S.21 26 [No. 19.] [2007.]Consumer Protection Act 2007. (2) It shall not be necessary for the purposes of subsection (1) that the same prescribed bodies be party to each agreement entered into with the Agency in pursuance of that subsection. (3) A co-operation agreement shall include provisions— (a) enabling each party to furnish to another party infor- mation in its possession if the information is required by that other party for the purpose of the performance by it of any of its functions, (b) enabling each party to forbear to perform any of its func- tions in relation to a matter in circumstances where it is satisfied that another party is performing functions in relation to that matter, (c) requiring each party to consult with any other party before performing any functions in circumstances where the respective exercise by each party of the functions con- cerned involves the determination of issues of consumer protection and welfare that are identical to one another or are within the same category of such an issue, being a category specified in the co-operation agreement, and (d) ensuring that no person is the subject of— (i) proceedings (whether civil or criminal) under this Act or any other enactment, or (ii) the exercise of any power under section 73 or 75, in respect of an alleged contravention of a provision of this Act or any other enactment, by more than one of the parties. (4) A co-operation agreement may be varied by the parties concerned. (5) The Minister and, where relevant, the Minister or Ministers of the Government with responsibility for the prescribed body con- cerned shall each be furnished by the Agency with a copy of every co-operation agreement (including any variation of the agreement) that has been made within 1 month after the agreement (or the vari- ation of it) has been made. (6) A co-operation agreement, or any variation made to it, shall be in writing and, as soon as practicable after the agreement or vari- ation has been made and furnished to the Minister or Ministers of the Government with responsibility for the prescribed body con- cerned, notice of its making shall be published by the parties in such manner as they think fit. (7) Such a notice shall state that a copy of the agreement con- cerned (including the agreement as varied) may be inspected at such place, or by such means as is specified in the notice and that a copy of the agreement may be purchased from the parties in such manner as is so specified (and a copy of the agreement shall, accordingly, be made available for such inspection and be made available for such purchase (at a cost not exceeding the reasonable cost of making a copy or, where appropriate, such cost and the amount of any post- age involved)). [2007.] [No. 19.]Consumer Protection Act 2007. (8) Without prejudice to subsection (9), nothing in any enactment shall be read as preventing the provisions of a co-operation agree- ment from having effect in accordance with their terms. (9) If information is furnished by one party to another party pur- suant to a provision of a co-operation agreement of the kind referred to in subsection (3)(a), the provisions of any enactment concerning the disclosure of that information by the first-mentioned party shall apply to the second-mentioned party with respect to that information. (10) A failure by the Agency or a prescribed body to comply with a provision of a co-operation agreement shall not invalidate the exer- cise by it of any power. (11) (a) In this section “prescribed body” means each of the following: (i) the Irish Financial Services Regulatory Authority; (ii) a body prescribed by the Minister. (b) Before prescribing a body for which another Minister of the Government has responsibility, the Minister shall consult with that other Minister of the Government. (c) In prescribing a body for the purposes of this section the Minister shall have regard to its functions and activities in so far as those functions and activities relate to consumer protection and welfare. (12) In this section “party” means a party to a co-operation agree- ment and a reference to another party (whether that expression or the expression “the other party” is used) shall, where there are 2 or more other parties to the agreement, be construed as a reference to one or more of those other parties or each of them, as appropriate. 22.—(1) The Agency shall, as soon as practicable, but not later than 6 months, after the end of each financial year make a report in writing to the Minister (in this section referred to as the “annual report”) of its activities during that year, and, before the annual report is published, the Minister shall as soon as practicable after receipt by him or her of the annual report cause copies of the annual report to be laid before each House of the Oireachtas. (2) An annual report shall include information in such form and regarding such matters as the Minister may direct. (3) The Agency may, from time to time, make such other reports to the Minister relating to its functions as it considers appropriate or as the Minister may require. (4) In addition to the information provided by the Agency in its annual report and in reports made pursuant to subsection (3), the Agency shall provide the Minister with such information in relation to the performance of its functions, or with advice on any matter relating to those functions, or both as the Minister may from time to time request. 23.—(1) The Agency shall submit estimates of income and expen- diture to the Minister in such form, in respect of such periods and at 27 Pt.2 S.21 Reports and information to Minister. Accounts and audits. Pt.2 S.25 Power to enter into contracts and to engage consultants and advisers. Premises of Agency. Seal of Agency. Power to borrow. Authorised officers of Agency. 30 [No. 19.] [2007.]Consumer Protection Act 2007. (8) In this section “connected relative”, in relation to a person, means a spouse, partner, parent, brother, sister, child or the spouse of a child of the person. 26.—The Agency may from time to time as it considers necessary for the performance of its functions for such period and subject to such terms and conditions as the Agency considers appropriate— (a) enter into contracts with persons, and (b) engage consultants or advisers, and any sums thereby payable by the Agency to such persons, con- sultants or advisers shall be paid by the Agency out of monies at its disposal. 27.—The Agency may, for the purposes of providing premises necessary for the performance of its functions, lease, equip and main- tain offices and premises subject to the consent of the Minister and the Minister for Finance. 28.—(1) The Agency shall, as soon as may be after the establish- ment day, provide itself with a seal. (2) The seal of the Agency shall be authenticated by the signa- ture of— (a) the chairperson of the Agency or another member of the Agency authorised in that behalf by it, or (b) the chief executive or any other member of the staff of the Agency authorised in that behalf by it. (3) Judicial notice shall be taken of the seal of the Agency and an instrument purporting to be an instrument made by the Agency and to be sealed with its seal (purporting to be authenticated in accord- ance with subsection (2)) shall be received in evidence and shall be deemed to be such instrument without further proof unless the con- trary is shown. (4) Any contract or instrument which, if entered into or executed by a person not being a body corporate, would not require to be under seal may be entered into or executed on behalf of the Agency by any person generally or specially authorised in that behalf by the Agency. 29.—The Agency may borrow money (including money in a cur- rency other than the currency of the State) for the purpose of per- forming any of the functions of the Agency, subject to the consent of the Minister and the Minister for Finance and any conditions they may determine. 30.—(1) The Agency may appoint in writing such and so many persons, including members of the staff of the Agency, to be author- ised officers for the purposes of all or any of the relevant statutory provisions and such appointment may be specified to be for a fixed period. [2007.] [No. 19.]Consumer Protection Act 2007. (2) An authorised officer under section 16 of the Consumer Infor- mation Act 1978 holding office immediately before the commence- ment of section 37 shall continue in office as if appointed under sub- section (1). (3) Every authorised officer appointed under this section shall be furnished with a warrant of appointment and shall, when exercising any power conferred on him or her by this section, if requested by a person affected, produce the warrant of appointment or copy of it to that person. (4) An appointment under this section as an authorised officer shall cease— (a) if the Agency revokes the appointment, (b) if the appointment is for a fixed period, on the expiry of that period, or (c) if the person appointed ceases to be a member of staff of the Agency. (5) An authorised officer may, for the purpose of obtaining any information which may be required in relation to a matter under investigation under any of the relevant statutory provisions— (a) at all reasonable times enter any premises on, at or in which there are reasonable grounds to believe that any trade or business or any activity in connection with a trade or business is being, or has been, carried on, or that records in relation to that trade, business or activity are kept, and search and inspect the premises and any records that are on, at or in that premises, (b) secure for later inspection any, or any part of any, prem- ises on, at or in which such records are kept or there are reasonable grounds for believing that such records are kept, (c) require any person who carries on such trade, business or activity or any person employed in respect of such trade, business or activity to produce to the authorised officer such records and where such records are kept in a non- legible form to reproduce them in a legible form or to give to him or her any information as the authorised officer may reasonably require in relation to such records, (d) inspect and take copies of or extracts from any such records on, at or in the premises, including in the case of information in a non-legible form, copies of or extracts from such information in a permanent legible form, (e) remove and retain such records for such periods as may be reasonable for further examination, subject to a war- rant being issued for that purpose by a judge of the Dis- trict Court, (f) require any such person to give to the authorised officer any information which the authorised officer may reason- ably require in regard to such trade, business or activity 31 Pt.2 S.30 Pt.2 S.30 32 [No. 19.] [2007.]Consumer Protection Act 2007. or in respect of the persons carrying on such trade, busi- ness or activity or employed in connection with such trade, business or activity, (g) require any such person to give to the authorised officer any other information which the authorised officer may reasonably require in respect of such trade, business or activity, (h) require any person by or on whose behalf data equipment is or has been used or any person having charge of, or otherwise concerned with the operation of, the data equipment or any associated apparatus or material, to afford the authorised officer all reasonable assistance in relation to it and assist in the retrieval of information connected with the operation of such data equipment, apparatus or material, (i) summon, at any reasonable time, any other person employed in connection with such trade, business or activity to give to the authorised officer any information which the authorised officer may reasonably require in relation to such trade, business or activity and to produce to the authorised officer any records which are in the con- trol of that other person. (6) An authorised officer may, for the purpose of obtaining any information which may be required in relation to a matter under investigation under the relevant statutory provisions, at all reason- able times enter any premises, at which there are reasonable grounds to believe that any trade or business or any activity in connection with a trade or business is, or has been, carried on and inspect any goods on the premises and may— (a) on paying or making tender of payment therefor, take any of the goods, or (b) confirm by such other method as appropriate the price at which the goods are on offer or any other information relating to the goods for the purpose of an investigation. (7) An authorised officer shall not, other than with the consent of the occupier, enter a private dwelling unless he or she has obtained a warrant from the District Court under subsection (10) authorising such entry. (8) Where an authorised officer in the exercise of his or her powers under this section is prevented from entering any premises an application may be made under subsection (10) authorising such entry. (9) An authorised officer appointed under this section, when exercising any powers conferred on an authorised officer by this Act, may be accompanied by such other authorised officers or members of the Garda Sı́ochána or both as he or she considers necessary. (10) Without prejudice to the powers conferred on an authorised officer by or under any provision of this section, if a judge of the District Court is satisfied on the sworn information of an authorised officer that there are reasonable grounds for suspecting that there is information required by an authorised officer under this section held on or at any, or any part of any, premises, the judge may issue a warrant authorising an authorised officer (accompanied by such [2007.] [No. 19.]Consumer Protection Act 2007. (a) the Competition Authority, (b) a member of the Garda Sı́ochána, (c) the Director of Corporate Enforcement, (d) an officer of the Revenue Commissioners, (e) the Central Bank and Financial Services Authority of Ireland, or (f) such other person as may be prescribed after consultation by the Minister with any other Minister of the Govern- ment appearing to the Minister to be concerned. 32.—(1) A person shall not, unless authorised by the Agency or by a member of the staff of the Agency duly authorised in that behalf so to do, or required by law, disclose confidential information obtained by him or her in his or her capacity, or while performing duties as— (a) a member of the Agency or of a committee, (b) the chief executive, (c) a member of the staff of the Agency, (d) a consultant or adviser engaged by the Agency or an employee of such a consultant or adviser, (e) an authorised officer, or (f) a person engaged by the Agency in any other capacity. (2) Subsection (1) shall not apply to— (a) a communication made by a member of the Agency or of a committee, the chief executive, a member of staff of the Agency or an authorised officer, in the performance of any of his or her functions under this Act, being a com- munication the making of which was necessary for the performance by the member, chief executive, member of staff of the Agency or authorised officer of any such func- tion, or (b) the disclosure by a member of the Agency or of a commit- tee, the chief executive, a member of staff of the Agency or an authorised officer to any member of the Garda Sı́ochána of information which, in the opinion of the member or chief executive or member of staff of the Agency or authorised officer, may relate to the com- mission of an offence (whether an offence under this Act or not). (3) A person who contravenes subsection (1) commits an offence and is liable on summary conviction to the fines and penalties pro- vided in Chapter 4 of Part 5. (4) Nothing in subsection (1) shall prevent the disclosure of infor- mation by means of a report made— (a) to the Agency or a committee, as the case may be, or 35 Pt.2 S.31 Prohibition on unauthorised disclosure of information. Pt.2 S.32 Amendment of Freedom of Information Act 1997. Staffing. 36 [No. 19.] [2007.]Consumer Protection Act 2007. (b) by or on behalf of the Agency or a committee to the Minister. (5) A person who suffers loss or harm as a result of a contra- vention of subsection (1) shall be entitled to bring proceedings against the person referred to in subsection (6) in any court of com- petent jurisdiction seeking one, or more than one as appropriate, of the following reliefs in respect of that loss or harm: (a) relief by way of injunction or declaration; (b) damages. (6) The person mentioned in subsection (5) is— (a) if the person who contravened subsection (1) is other than a member of the Agency or a member of staff of the Agency or an authorised officer, that person, (b) if the person who contravened subsection (1) is a member of the Agency or a member of staff of the Agency or an authorised officer and the relief sought, or to the extent that the relief sought, in the proceedings is— (i) relief referred to in subsection (5)(a), that person, (ii) relief referred to in subsection (5)(b), the Agency. (7) An action under subsection (5) shall be regarded as an action founded on tort. (8) In this section “confidential information” includes information that is expressed by the Agency or a committee, as the case may be, to be confidential either as regards particular information or as regards information of a particular class or description. 33.—On the establishment day, the Freedom of Information Act 1997 is amended by inserting— (a) in paragraph 1(2) of the First Schedule, “the National Consumer Agency,”, and (b) in Part I of the Third Schedule at the end thereof— (i) in column (2), “Consumer Protection Act 2007”, and (ii) in column (3), “Section 32” opposite the mention in column (2) of the Consumer Protection Act 2007. Chapter 2 Staff of Agency 34.—(1) Subject to section 35, the Agency may, with the approval of the Minister given with the consent of the Minister for Finance— (a) appoint such and so many persons to be members of the staff of the Agency as it may from time to time deter- mine, and [2007.] [No. 19.]Consumer Protection Act 2007. (b) determine the grades of such staff of the Agency and the number of staff in each grade. (2) Subject to section 35, the terms and conditions of service, including terms and conditions relating to remuneration and allow- ances for expenses (which shall be paid by the Agency out of monies at its disposal), of the members of the staff of the Agency shall be such as the Agency may from time to time, with the approval of the Minister given with the consent of the Minister for Finance, determine. 35.—(1) On the request of the chief executive made within 24 months after the establishment day, the Minister may, by direction in writing, transfer to the Agency the employment of a person who is employed in a Department of State or by a public body, but only if the person has agreed to have that employment transferred to the Agency. (2) The chief executive may make such a request only with the concurrence of the Agency. (3) The conditions of employment of a person whose employment is transferred under this section are to be no less favourable than those applicable to the person immediately before the transfer, except in so far as a collective agreement negotiated with a recog- nised trade union or staff association of which the person is a member expressly provides otherwise. (4) If any dispute arises between a person whose employment is transferred under this section and the Agency as to the conditions of employment applicable to the person immediately before the transfer, the Minister shall determine the dispute. (5) If a person’s employment is transferred under this section, the person’s previous service with a Department of State or public body is to be counted as service for the purposes of the following Acts of the Oireachtas: (a) the Redundancy Payments Acts 1967 to 2003; (b) the Protection of Employees (Part-Time Work) Act 2001; (c) the Protection of Employees (Fixed-Term Work) Act 2003; (d) the Minimum Notice and Terms of Employment Acts 1973 to 2005; (e) the Unfair Dismissals Acts 1977 to 2005; (f) the Terms of Employment (Information) Acts 1994 and 2001; (g) the Organisation of Working Time Act 1997; (h) the Parental Leave Acts 1998 and 2006; (i) the Carer’s Leave Act 2001. (6) In this section “recognised trade union or staff association” means a trade union or staff association recognised by the Agency for the purposes of negotiations which are concerned with the 37 Pt.2 S.34 Transfer of employment of certain persons to Agency. Pt.2 S.39 References in certain other enactments to Director or Office of Director. General prohibition on unfair commercial practices. 40 [No. 19.] [2007.]Consumer Protection Act 2007. (a) all rights and property and rights relating to such property held or enjoyed immediately before that day by the Director; and (b) all liabilities incurred before that day by the Director which had not been discharged before that day; and, accordingly, without any further conveyance, transfer or assignment— (i) the said property, real and personal, shall, on that day, vest in the Agency for all the estate, term or interest for which, immediately before that day, it was vested in the Director, but subject to all trusts and equities affecting the property and capable of being performed, (ii) those rights shall, on and from that day, be enjoyed by the Agency, and (iii) those liabilities shall, on and from that day, be liabilities of the Agency. (2) All monies, stocks, shares and securities transferred to the Agency by this section which, immediately before the establishment day, are in the name of the Director, shall, upon the request of the Agency, be transferred into its name. (3) Every right and liability transferred to the Agency by this section may, on or after the establishment day, be sued on, recovered or enforced by or against the Agency in its own name and it shall not be necessary for the Agency to give notice of the transfer to the person whose right or liability is transferred by this section. (4) The Agency shall not, without the consent of the Minister, dispose of any part of any land or any interest therein transferred to or vested in the Agency under this section. 40.—(1) The Acts of the Oireachtas specified in Part 1 of Schedule 3 are amended as indicated in that Schedule. (2) The instruments specified in Part 2 of Schedule 3 are amended as indicated in that Schedule. PART 3 Commercial Practices Chapter 1 Unfair Commercial Practices 41.—(1) A trader shall not engage in an unfair commercial practice. (2) A commercial practice is unfair if it— (a) is contrary to one or both of the following (the require- ments of professional diligence): [2007.] [No. 19.]Consumer Protection Act 2007. (i) the general principle of good faith in the trader’s field of activity; (ii) the standard of skill and care that the trader may reasonably be expected to exercise in respect of consumers, and (b) would be likely to— (i) cause appreciable impairment of the average con- sumer’s ability to make an informed choice in relation to the product concerned, and (ii) cause the average consumer to make a transactional decision that the average consumer would not other- wise make. (3) In determining whether a commercial practice is unfair under subsection (2), the commercial practice shall be considered in its fac- tual context, taking account of all of its features and the cir- cumstances. Chapter 2 Misleading Commercial Practices 42.—(1) A trader shall not engage in a misleading commercial practice. (2) Without prejudice to the amendments of the Hallmarking Act 1981 made by section 99, sections 43 to 46 specify the various circum- stances in which a commercial practice is misleading. 43.—(1) A commercial practice is misleading if it includes the pro- vision of false information in relation to any matter set out in subsec- tion (3) and that information would be likely to cause the average consumer to make a transactional decision that the average con- sumer would not otherwise make. (2) A commercial practice is misleading if it would be likely to cause the average consumer to be deceived or misled in relation to any matter set out in subsection (3) and to make a transactional decision that the average consumer would not otherwise make. (3) The following matters are set out for the purposes of subsec- tions (1) and (2): (a) the existence or nature of a product; (b) the main characteristics of a product, including, without limitation, any of the following: (i) its geographical origin or commercial origin; (ii) its availability, including, without limitation, its avail- ability at a particular time or place or at a part- icular price; (iii) its quantity, weight or volume; 41 Pt.3 S.41 General prohibition on misleading commercial practices. Misleading: false, misleading or deceptive information. Pt.3 S.43 42 [No. 19.] [2007.]Consumer Protection Act 2007. (iv) its benefits or fitness for purpose; (v) the results to be expected from it; (vi) the risks it presents to consumers; (vii) its usage or prior history; (viii) its composition, ingredients, components or accessories; (ix) the specifications of the product, including, without limitation, the grade, standard, style, status or model of the product; (x) the after-supply customer assistance available to con- sumers in relation to the product; (xi) the handling of consumer complaints in relation to the product; (xii) the method or date of— (I) the product’s delivery, supply or provision, or (II) in the case of goods, the product’s manufacture; (xiii) the results and material features of tests or checks carried out on the product; (xiv) in relation to a service, its execution or performance; (c) the price of the product, the manner in which that price is calculated or the existence or nature of a specific price advantage; (d) the need for any part, replacement, servicing or repair in relation to the product; (e) the existence, extent or nature of any approval or sponsor- ship (direct or indirect) of the product by others; (f) the nature, attributes or rights of the trader, including, without limitation, the following: (i) the trader’s identity, qualifications, assets or status; (ii) the trader’s affiliation or connection with others; (iii) the existence, extent or nature of— (I) any industrial, commercial or intellectual prop- erty rights the trader may have, or (II) any award, distinction, approval or sponsorship (direct or indirect) the trader has or has received; (g) the extent of the trader’s commitments; (h) the trader’s motives for the commercial practice; (i) the nature of the trader’s supply process; [2007.] [No. 19.]Consumer Protection Act 2007. (c) the price of the product (inclusive of taxes) or, if the nat- ure of the product is such that the price cannot reason- ably be calculated in advance, the manner in which the price is calculated; (d) any freight, delivery or postal charges that apply in relation to the product or, if such charges cannot reason- ably be calculated in advance, a statement of the fact that such charges will apply and be payable by the consumer; (e) the handling of consumer complaints in relation to the product or the arrangement for payment, delivery or per- formance, if such handling or arrangement does not meet or accord with— (i) the standard of skill and care that the trader may reasonably be expected to exercise in respect of con- sumers, or (ii) the general principle of good faith in the trader’s field of activity; (f) if applicable, the legal rights of a consumer (whether con- tractual or otherwise) to withdraw from or cancel the consumer transaction. (4) The material information set out in subsection (3) is in addition to and not instead of any other information that the trader is required by law to provide to a consumer, including, without limi- tation, any information required to be provided by regulations under this Act. (5) In determining whether a commercial practice is misleading under this section, the commercial practice shall be considered in its factual context, taking account of all of its features and the circum- stances, including— (a) the space or time available in any communications medium used, and (b) any measures taken by the trader to make the material information available to consumers by other means. 47.—A trader who engages in any misleading commercial practice described in section 43(1) or (2) commits an offence and is liable on conviction on indictment or on summary conviction, as the case may be, to the fines and penalties provided in Chapter 4 of Part 5. 48.—(1) In this section— “cash” means cash that is legal tender; “relevant method”, in relation to payment, means each of the follow- ing methods of payment— (a) cash, (b) credit card, (c) direct debit, 45 Pt.3 S.46 Offence: misleading commercial practices. Prohibition on surcharges where one method of payment chosen in preference to another. Pt.3 S.48 46 [No. 19.] [2007.]Consumer Protection Act 2007. (d) any other method or methods of payment prescribed by the Minister. (2) In this section a reference to a representation includes a refer- ence to a representation made at any stage up to the time the trader accepts payment in respect of the product concerned. (3) Where— (a) a trader makes a representation that the trader will accept payment in respect of a product by any one of 2 or more different relevant methods, or (b) it is the practice of a trader to accept payment in respect of a product by different relevant methods, the trader shall not impose an additional charge on any person by reason of the person’s making payment in respect of the product by one of the relevant methods (to which the foregoing representation relates or as regards which the foregoing practice exists) as distinct from another of them. (4) For the purposes of subsection (3)— (a) without limiting any of the other means by which that sub- section may be contravened, a trader shall be deemed to impose an additional charge, by reason of the person concerned making payment as mentioned in that subsec- tion, if the price charged by the trader in respect of the product concerned is, where one of the relevant methods of payment is used by that person, greater than the price that would be so charged were that person to use another of them, (b) if the representation or practice referred to in that subsec- tion relates not only to relevant methods of payment but to one or more other methods of payment as well, that fact is immaterial, and (c) it is immaterial that the trader can show that any expenses incurred by the trader in accepting payment by one of the relevant methods are greater than those incurred by the trader in accepting payment by another of them. (5) A trader who contravenes subsection (3) commits an offence and is liable on summary conviction to the fines and penalties pro- vided in Chapter 4 of Part 5. (6) In proceedings for an offence under this section, where evi- dence is given that on a particular occasion the defendant accepted payment in respect of the product concerned by a relevant method which was different from that which the defendant accepted in respect of the product on another occasion in the period of 12 months preceding the first-mentioned occasion (and that previous method is also a relevant method), then it shall be presumed, until the contrary is proved, that a practice existed on the part of the defendant to accept payment in respect of the product by those fore- going methods. [2007.] [No. 19.]Consumer Protection Act 2007. 49.—(1) Where it is the practice of a trader to accept payment in respect of a product— (a) by only one relevant method and to impose a charge on a person for the person’s making payment in respect of the product by that method, or (b) by different relevant methods and to impose on a person the same charge for the person’s making payment in respect of the product by any of those methods, the trader shall ensure that any representation made by the trader, or on the trader’s behalf, in relation to the price payable in respect of the product, states clearly that price as a single amount inclusive of the foregoing charge. (2) For the purposes of subsection (1), it is immaterial that the trader also accepts payment in respect of the product concerned by one or more methods of payment that are not relevant methods of payment and the reference in that subsection to the practice of a trader to accept payment in respect of a product by only one relevant method shall be read accordingly. (3) A trader who contravenes subsection (1) commits an offence and is liable on summary conviction to the fines and penalties pro- vided in Chapter 4 of Part 5. (4) In a case falling within paragraph (a) or (b) of subsection (1), nothing in that subsection prevents the inclusion in any represen- tation referred to in that subsection of— (a) an indication that the single price stated is inclusive of a charge for making payment by the method concerned or, as the case may be, any of the methods concerned, or (b) an indication of the amount of such charge. (5) In this section ‘relevant method’, in relation to payment, has the same meaning as it has in section 48. 50.—(1) Subject to subsection (5), if the Minister considers it to be in the interest of consumers to have a product, or a class or type of product, marked with or accompanied by any information (or both), the Minister may make regulations— (a) prescribing the product or class or type of product, (b) prescribing— (i) any stamps, marks, tags and labels for use on those products and the manner of their use, or (ii) any information to accompany those products when they are supplied to consumers by traders, or (iii) the matters referred to in both of the foregoing subpa- ragraphs, (c) requiring traders who supply a prescribed product, or a product of a prescribed class or type, to— 47 Pt.3 Requirement that surcharge (where otherwise permissible) be stated as part of price. Consumer information regulations. Pt.3 S.53 Offence: aggressive commercial practices. Prohibited commercial practices. 50 [No. 19.] [2007.]Consumer Protection Act 2007. (i) take action or initiate proceedings against the con- sumer when the trader has no legal basis for taking such action or initiating such proceedings, or (ii) do something unlawful. (4) In this section, “undue influence” means exploiting a position of power in relation to a consumer so as to apply pressure (without necessarily using or threatening to use physical force) in a way that significantly limits the consumer’s ability to make an informed choice in relation to the trader’s product. 54.—A trader who engages in any aggressive commercial practice described in section 53(1) commits an offence and is liable on convic- tion on indictment or on summary conviction, as the case may be, to the fines and penalties provided in Chapter 4 of Part 5. Chapter 4 Prohibited Commercial Practices 55.—(1) A trader shall not engage in any of the following com- mercial practices: (a) a representation that the trader has an approval, authoris- ation or endorsement that the trader does not have, or making such a representation when the trader is not in compliance with that approval, authorisation or endorsement; (b) a representation that the trader is signatory to a code of practice, if the trader is not; (c) a representation that the trader is about to cease trading or move premises, if the trader is not; (d) a representation that a product has an approval, authoris- ation or endorsement that it does not have, or making such a representation when the trader is not in com- pliance with that approval, authorisation or endorsement; (e) a representation that a product is able to facilitate winning in games of chance; (f) a representation that supply of a product is legal, if it is not, or creating such an impression; (g) a representation that a product is able to cure an illness, dysfunction or malformation, if it cannot; (h) a representation that describes a product as “gratis”, “free”, “without charge” or anything similar, if a con- sumer has to pay anything other than the necessary and reasonable cost of— (i) responding to the representation, and (ii) collecting the product or having it delivered; (i) a representation that a commercial practice of the trader has an approval, authorisation or endorsement that it [2007.] [No. 19.]Consumer Protection Act 2007. does not have, or making such a representation when the trader is not in compliance with the approval, authoris- ation or endorsement; (j) a representation that a code of practice has an approval or other endorsement that it does not have; (k) displaying a quality, standard or trust mark or symbol, or some equivalent type of mark or symbol, without having obtained necessary authorisation to do so; (l) making an invitation to purchase a product without dis- closing the existence of any reasonable grounds the trader may have for believing that the trader will not be able to supply, or procure another trader to supply, the product or an equivalent product at the price specified in the invitation, or to do so for a reasonable period of time or in reasonable quantities, having regard to the scale of any marketing or advertising of the product and the price specified (bait advertising); (m) making an invitation to purchase a product, then— (i) demonstrating a defective sample of the product, or (ii) refusing to— (I) show or display the product to the consumer, (II) take an order from the consumer for the prod- uct, or (III) deliver the product to the consumer within a reasonable period of time, with the intention of promoting a different product (bait and switch); (n) making a false representation that a product is available only for a limited time, or on particular terms for a lim- ited time, in order to elicit an immediate decision from a consumer, depriving the consumer of sufficient oppor- tunity or time to make an informed choice in relation to the trader’s product; (o) subject to subsection (2), providing after-supply service to a consumer in a language that is not an official language of the relevant State in which the trader is located, nor is it the language in which the trader and consumer com- municated prior to the agreement to supply; (p) making a representation or creating an impression that a right given to consumers under an enactment is a distinc- tive feature of the trader’s promotion or supply; (q) using editorial content in the media to promote a product (if a trader has paid for that promotion) if it is not made clear that the promotion is a paid promotion, whether in the content itself or in any oral, written, visual or descrip- tive representation in the promotion; (r) making a representation to a consumer that is materially inaccurate in respect of the nature and extent of risk to 51 Pt.3 S.55 Pt.3 S.55 52 [No. 19.] [2007.]Consumer Protection Act 2007. the consumer’s personal security, or that of other members of the consumer’s household, if the consumer does not purchase the trader’s product; (s) promoting a product (similar to that of another manufacturer) in such a manner as to deliberately mis- lead or deceive a consumer into thinking that the product is manufactured by that manufacturer, when it is not; (t) making a representation to a consumer that is inaccurate to a material degree in respect of market conditions, or in respect of the possibility of finding a product, with the intention of inducing the consumer to purchase a product at conditions less favourable than normal market conditions; (u) operating, running or promoting a competition or prize promotion without awarding the prizes described or reasonable equivalents; (v) making a representation or creating an impression that a consumer has won or will win a prize or other equivalent benefit, if— (i) there is no prize or equivalent benefit, or (ii) in claiming the prize, the consumer has to make a pay- ment or incur a loss; (w) including in marketing material an invoice or any similar document seeking payment from a consumer for a prod- uct that the consumer has not ordered; (x) making a representation or creating an impression that the trader— (i) is not acting for purposes related to the trader’s trade, business or profession, when the trader is so acting, or (ii) is acting as a consumer, when the trader is not; (y) making a representation or creating an impression that after-supply service in relation to a product is available in a relevant State other than the one in which the prod- uct is supplied, when it is not so available. (2) Subsection (1)(o) does not apply in either of the following cases: (a) prior to the agreement to supply, the trader clearly dis- closes to the consumer the language or languages in which the after-supply service is available; (b) the primary language in which the trader and consumer communicated prior to the agreement to supply is the official language of the relevant State in which the trader is located but is not the official language of the relevant State of the consumer. (3) A trader shall not engage in any of the following commercial practices: [2007.] [No. 19.]Consumer Protection Act 2007. person to see the reading of the weight provided by the scale or machine and to be informed of the resultant price before payment. (3) A grocery retailer who contravenes subsection (2)(a) or (b) commits an offence and is liable on summary conviction to the fines and penalties provided in Chapter 4 of Part 5. 60.—(1) A trader shall not, without reasonable cause, prevent a person from, or obstruct or interfere with that person in— (a) reading the prices displayed on or in relation to products supplied by the trader, or (b) entering premises for purposes described in paragraph (a), if those premises are where the trader supplies those products. (2) A trader who contravenes subsection (1)(a) or (b) commits an offence and is liable on summary conviction to the fines and penalties provided in Chapter 4 of Part 5. 61.—(1) If the Government are of the opinion that abnormal cir- cumstances prevail or are likely to prevail in relation to the supply of a product, the Government may by order (“emergency order”) declare that a state of emergency affecting the supply of that prod- uct exists. (2) An emergency order may relate to one or more products and may define the products in such manner as the Government think fit. (3) Unless the term of an emergency order is extended under sub- section (4) or (5) or the order is revoked, an emergency order— (a) remains in force for such term (not exceeding 6 months from the date that the order is made) that the Govern- ment think proper and specify in the order, and (b) expires at the end of the last day of the term specified. (4) Subject to subsection (5), if an emergency order is in force (“principal order”) and the Government are of the opinion that abnormal circumstances continue to prevail in relation to the supply of a product to which the order relates, the Government may make one order (“extension order”) in relation to that product extending the term of the principal order as it relates to that product for a period not exceeding 6 months from the date that the extension order is made. (5) If during the extended term under subsection (4), the Govern- ment are of the opinion that abnormal circumstances continue to prevail in relation to the supply of the product to which the extension order relates, the Government may make only one more order (“final extension order”) in relation to that product extending the term of the principal order as it relates to that product for a period not exceeding 6 months from the date that the final extension order is made. 55 Pt.3 S.59 Offence: preventing the reading of prices. State of emergency affecting supply of a product. Pt.3 Power to fix maximum prices during state of emergency. Offence: contravening maximum price orders. Definition (Part 4). 56 [No. 19.] [2007.]Consumer Protection Act 2007. 62.—(1) If an emergency order is in force in respect of a product under section 61, the Government may by order fix the maximum price at which that product may be supplied by a trader to consumers. (2) An order under subsection (1) may— (a) limit the application of the order to a class or type of the product, (b) specify conditions by reference to which a maximum price is fixed and may fix different maximum prices in relation to different conditions, (c) apply to the whole State, to a particular geographical area in the State, or to the supply of the product by a part- icular class or type of trader, (d) fix a maximum price by specifying it or by specifying the manner in which it is to be calculated, and (e) provide for any incidental or ancillary matter (including a requirement that the product to which the order relates shall be sold only in specified units of weight, measure or volume) that the Government consider necessary or expedient to give full effect to any provision of the order or to secure compliance with it. (3) Unless previously revoked, an order made under this section expires on the expiration of the emergency order in respect of which it is made. 63.—A trader who contravenes an order made under section 62 commits an offence and is liable on conviction on indictment or on summary conviction, as the case may be, to the fines and penalties provided in Chapter 4 of Part 5. PART 4 Pyramid Promotional Schemes 64.—(1) In this Part, “pyramid promotional scheme” means a scheme by which a person gives consideration in money or money’s worth, or gives a gift in money or money’s worth, for an opportunity to receive compensation derived primarily from the introduction of other persons into the scheme rather than from the supply or con- sumption of a product. (2) The following apply in respect of subsection (1): (a) the opportunity to receive compensation need not be lim- ited to the person’s introduction of other persons into the scheme but may include their introduction by other persons; (b) the scheme may but need not involve the supply of a product. [2007.] [No. 19.]Consumer Protection Act 2007. 65.—(1) A person shall not— (a) establish, operate or promote a pyramid promotional scheme, (b) knowingly participate in such a scheme, or (c) induce or attempt to induce another person to participate in such a scheme. (2) A person who contravenes subsection (1) commits an offence. (3) In proceedings for an offence under this section or for a pro- hibition order under section 71, it shall not be necessary for the pros- ecution or the applicant, as the case may be, to prove— (a) that the opportunity to receive compensation was a legally enforceable right, (b) that the consideration or gift given, as the case may be, was given within the State, (c) that giving consideration or a gift was the only require- ment a person had to satisfy in order to— (i) participate or be eligible to participate in the scheme, or (ii) be eligible or have opportunity to receive compen- sation under the scheme, (d) that any compensation received was received within the State, (e) that any opportunity to receive compensation was to be a receipt of such compensation within the State, or (f) that any arrangements under the scheme were recorded in writing. (4) If, in proceedings for an offence under this section or for a prohibition order under section 71, the alleged pyramid promotional scheme involves the supply of a product, then the following may be considered (among other things) in determining whether the oppor- tunity to receive compensation is derived primarily from the intro- duction of other persons into the scheme: (a) in respect of a promotion of the scheme, the emphasis given to a participant’s entitlement to the product, as compared to the emphasis given to compensation derived from the introduction of other persons into the scheme; (b) the extent to which the consideration given bears a reason- able relationship to the product, by reference to the price of the same or a comparable product available elsewhere. (5) A person guilty of an offence under this section is liable on conviction on indictment to the fines and penalties provided in Chap- ter 4 of Part 5. 57 Pt.4 Indictable offence: participating in, establishing, operating or promoting pyramid promotional schemes. Pt.5 S.71 Prohibition orders against code owners. 60 [No. 19.] [2007.]Consumer Protection Act 2007. (5) If the applicant for an order under this section is not the Agency, the court may not make the order unless the Agency has been afforded an opportunity to be heard and adduce evidence. (6) If the court considers it necessary or appropriate in the cir- cumstances, taking into account all interests involved and, in part- icular, the public interest, the court may make an order under this section without proof of any actual loss or damage or of any intention or negligence on the part of the trader. (7) In making an order under this section, the court may impose terms or conditions in the order that the court considers appropriate, including a requirement that the trader or person publish a corrective statement, at the trader’s or person’s own expense and in any manner the court considers appropriate, in respect of the matters the subject of the order. (8) An application under this section to the Circuit Court shall be made to the judge of the Circuit Court for the circuit in which the prohibited act or practice concerned is being committed or engaged in. (9) The Circuit Court shall have jurisdiction to hear and deter- mine an application under this section which it is satisfied it is appro- priate for it to deal with as a court of local and limited jurisdiction and, for the purpose of the court’s satisfying itself of that matter, the matters to which it shall have regard include— (a) the nature and extent of the prohibited act or practice con- cerned, and (b) the estimated cost of complying with the order to which the application relates. (10) If, in relation to an application under this section to the Cir- cuit Court, that court becomes of the opinion, during the hearing of the application, that it is not appropriate for the Circuit Court to deal with the application, it may, if it so thinks fit, transfer the appli- cation to the High Court. (11) Subsection (10) is without prejudice to the jurisdiction of the Circuit Court to determine an application under this section which, at the time of the making of the application, it was satisfied it had jurisdiction to deal with. (12) Where an application is transferred under subsection (10) to the High Court, the High Court shall be deemed to have made any order of a procedural nature that was made by the court from which it is so transferred in the proceedings in relation to the application. (13) A trader commits an offence who, without reasonable excuse, fails to comply with an order under this section and is liable on conviction on indictment or on summary conviction, as the case may be, to the fines and penalties provided in Chapter 4. 72.—(1) In this section, “code owner” means, in relation to a code of practice, any person responsible for formulating or revising the code or for monitoring compliance by those traders who agree, com- mit or undertake to abide or be bound by it. (2) If a code of practice or its code owner promotes any pro- hibited act or practice, the Agency may apply to the Circuit Court [2007.] [No. 19.]Consumer Protection Act 2007. or High Court for an order prohibiting the code owner from such promotion or requiring the code owner to withdraw the code or amend it as the court considers necessary to prevent such promotion. (3) An application under subsection (2) shall be on notice to the code owner. (4) In determining an application under this section, the court shall consider all interests involved and, in particular, the public interest. (5) In making an order under subsection (2), the court may impose terms or conditions in the order that the court considers appropriate. (6) Subsections (8) to (12) of section 71 apply to an application under this section as they apply to an application under that section with the following modifications— (a) the substitution in subsection (8) of “in which the code owner is promoting the prohibited act or practice con- cerned or in which the code owner resides or carries on any business or profession” for “in which the prohibited act or practice concerned is being committed or engaged in”, and (b) the substitution in subsection (9) of the following para- graph for paragraph (a): “(a) the nature and extent of the prohibited act or practice being promoted by the code of prac- tice concerned or its code owner,”. (7) A code owner commits an offence who, without reasonable excuse, fails to comply with an order under this section and is liable on conviction on indictment or on summary conviction, as the case may be, to the fines and penalties provided in Chapter 4. 73.—(1) In this section “prohibited act or practice” does not include a contravention of section 59(2) (respecting weighing facili- ties in grocery retail) or section 60(1) (respecting preventing the reading of prices). (2) If the Agency has reason to believe that a trader— (a) is committing or engaging in a prohibited act or practice, (b) is about to commit or engage in a prohibited act or prac- tice, or (c) has committed or engaged in a prohibited act or practice, the Agency may accept from the trader a written undertaking that is signed by the trader in the form and which contains the terms and conditions the Agency determines are appropriate in the cir- cumstances. (3) If the Agency accepts an undertaking from a trader under this section, the Agency shall publish the undertaking, or cause it to be published, in any form or manner the Agency considers appropriate. 61 Pt.5 S.72 Undertakings with the Agency. Pt.5 S.73 Consumer’s right of action for damages. 62 [No. 19.] [2007.]Consumer Protection Act 2007. (4) Without limiting subsection (2), the undertaking may include one or more of the following terms and conditions: (a) an undertaking to comply with the provision or provisions concerned of this Act or regulations under this Act; (b) an undertaking to refrain from committing or engaging in any act or practice; (c) an undertaking to compensate consumers or a class of con- sumers, including reimbursing any money or returning any other property or thing received from consumers in connection with a consumer transaction; (d) an undertaking to publish or cause to be published, at the trader’s expense, an advertisement containing a correc- tive statement relating to the prohibited act or practice. (5) If the trader under subsection (2) is a body corporate, the undertaking shall be signed by a director, manager, secretary or other officer of the trader. (6) The Agency may terminate proceeding against a trader under section 71 (respecting civil relief by way of prohibition orders) on the acceptance of an undertaking from the trader. (7) Despite subsection (6), the Agency may apply for an order against a trader under section 71 if the trader fails to comply with the terms and conditions of an undertaking under this section. (8) Subsections (2) to (5) shall, with the following modifications and any other necessary modifications, apply in respect of any trader the Agency has reason to believe is contravening, is about to contra- vene or has contravened an enactment specified in Schedule 4, namely, the modifications that— (a) references in those subsections to a prohibited act or prac- tice shall be read as references to a contravention of an enactment specified in that Schedule, and (b) the reference in subsection (4)(a) to the provision or pro- visions concerned of this Act or regulations under this Act shall be read as a reference to the provision or pro- visions concerned of that enactment. (9) If compensation is paid to a consumer pursuant to an under- taking referred to in subsection (4)(c) and the consumer subsequently commences an action under section 74 and is awarded damages by the court in respect of the same prohibited act or practice, the com- pensation paid under the undertaking is deemed to be in satisfaction of so much of the awarded damages as is equal to the amount paid to the consumer under that undertaking. 74.—(1) In this section, “prohibited act or practice” does not include— (a) a misleading commercial practice described in section 45, or (b) a contravention of section 65(1) (respecting pyramid pro- motional schemes). [2007.] [No. 19.]Consumer Protection Act 2007. (b) the day specified in the notice. (10) An authorised officer may— (a) withdraw a compliance notice at any time, or (b) if no appeal is made or pending under subsection (5), extend the date specified in the notice under subsection (3)(c). (11) A person commits an offence who, without reasonable excuse, fails to comply with a compliance direction or requirement specified in a compliance notice and, on summary conviction, is liable to the fines and penalties provided in Chapter 4. (12) Withdrawal of a compliance notice under subsection (10) does not prevent the service of another compliance notice, whether in respect of the same matter or a different matter. (13) If a compliance notice takes effect in accordance with this section, the Agency shall publish the compliance notice, or cause it to be published, in any form or manner the Agency considers appropriate. (14) Nothing in this section prevents the commencement of pro- ceedings for an offence. Chapter 4 Criminal Proceedings 76.—Notwithstanding any provision in any enactment specifying the period within which proceedings may be commenced, a pros- ecution for an offence under this Act may be brought at any time within 2 years after the date of the alleged commission of the offence. 77.—(1) If an offence under this Act is committed by a body cor- porate and is proved to have been committed with the consent, con- nivance or approval of, or to have been attributable to any neglect on the part of any person being a director, manager, secretary or any other officer of the body corporate or a person purporting to act in any such capacity, that person, as well as the body corporate, is guilty of an offence and is liable to be proceeded against and punished as if that person were guilty of the first-mentioned offence. (2) If, in a prosecution for an offence against the person referred to in subsection (1), it is proved that, at the material time, the person was a director of the body corporate or an employee of it whose duties included making decisions that, to a significant extent, could have affected the management of the body corporate, or a person who purported to act in any such capacity, it shall be presumed, until the contrary is shown, that the person consented to the doing of the acts or defaults that constitute the offence. (3) Subsection (2) shall be read as placing on the person referred to in that subsection an evidential burden only with respect to the matter or matters concerned. (4) If the affairs of a body corporate are managed by its members, subsections (1) and (2) apply in relation to the acts or defaults of a 65 Pt.5 S.75 Time limit for instituting proceedings. Liability for offences by bodies corporate. Pt.5 S.77 Defence of due diligence. Fines and penalties. 66 [No. 19.] [2007.]Consumer Protection Act 2007. member in connection with the member’s functions of management as if that member were a director or manager of the body corporate. (5) If a body corporate commits an offence under this Act, an employee, officer, director or agent of the body corporate who auth- orises, permits or acquiesces in the commission of the offence also commits an offence, whether or not the body corporate is prosecuted for the offence. (6) In a prosecution for an offence under this Act, it is sufficient proof of the offence to establish that it was committed by an employee, officer, director or agent of the defendant, whether or not the employee, officer, director or agent is identified or has been prosecuted for the offence. (7) Subsection (6) does not apply if the defendant establishes that the defendant exercised due diligence to prevent the commission of the offence. 78.—(1) In proceedings for an offence under this Act, other than an offence under section 65(2), it is a defence for the accused to prove both of the following: (a) commission of the offence was due to a mistake or the reliance on information supplied to the accused or to the act or default of another person, an accident or some other cause beyond the accused’s control; (b) the accused exercised due diligence and took all reason- able precautions to avoid commission of the offence. (2) If the defence provided by subsection (1) involves the alle- gation that the commission of the offence was due to reliance on information supplied by another person or to the act or default of another person, the accused shall not, without leave of the court, be entitled to rely on that defence unless, not less than 7 working days before the hearing, the accused has served on the prosecutor written notice providing information identifying or assisting in the identifi- cation of that other person. 79.—(1) A person guilty of an offence under this Act (other than an offence under section 65(2)) is liable on summary conviction to the following fines and penalties: (a) on a first summary conviction for any such offence, to a fine not exceeding \3,000 or imprisonment for a term not exceeding 6 months or both; (b) on any subsequent summary conviction for the same offence or any other offence under this Act (other than an offence under section 65(2)), to a fine not exceeding \5,000 or imprisonment for a term not exceeding 12 months or both. (2) If, after being convicted of an offence, the person referred to in subsection (1) continues to contravene the requirement or prohib- ition to which the offence relates, the person is guilty of a further offence on each day that the contravention continues and for each such offence is liable on summary conviction to a fine not exceeding \500. [2007.] [No. 19.]Consumer Protection Act 2007. (3) A person guilty of an offence under this Act (other than an offence under any of the excluded sections) is liable on conviction on indictment to the following fines and penalties: (a) on a first conviction on indictment for any such offence, to a fine not exceeding \60,000 or imprisonment for a term not exceeding 18 months or both; (b) on any subsequent conviction on indictment for the same offence or any other offence under this Act (other than an offence under any of the excluded sections), to a fine not exceeding \100,000 or imprisonment for a term not exceeding 24 months or both. (4) In subsection (3) “excluded sections” means sections 30(11), (12) and (15), 32(3), 48(5), 49(3), 51(1) and (2), 58, 59(3), 60(2), 65(2), 69(4), 75(11) and 101(5). (5) If, after being convicted of an offence, the person referred to in subsection (3) continues to contravene the requirement or prohib- ition to which the offence relates, the person is guilty of a further offence on each day that the contravention continues and for each such offence is liable— (a) on summary conviction, to a fine not exceeding \500, and (b) on conviction on indictment, to a fine not exceeding \10,000. (6) A person guilty of an offence under section 65(2) is liable on conviction on indictment to a fine not exceeding \150,000 or impris- onment for a term not exceeding 5 years or both. (7) If, after being convicted of an offence under section 65(2), a person continues to contravene section 65(1), the person is guilty of a further offence on each day that the contravention continues and for each such offence is liable on conviction on indictment to a fine not exceeding \10,000. (8) In considering an appropriate penalty under this section for a trader convicted of an offence under section 47, 51(2) or 56, the court may take into consideration any advertisement published by or on behalf of the trader containing corrective statements to remedy the prohibited act or practice in respect of which the trader is convicted. (9) Section 13 of the Criminal Procedure Act 1967 applies in relation to an offence under this Act except that the following range of fines and penalties are to be substituted for those provided in section 13(3)(a) of the Criminal Procedure Act 1967: (a) if it is a first conviction for an offence under this Act, the accused is liable to a fine not exceeding \3,000 or impris- onment for a term not exceeding 6 months or both; (b) if it is not a first conviction for an offence under this Act, the accused is liable to a fine not exceeding \5,000 or imprisonment for a term not exceeding 12 months or both. 67 Pt.5 S.79 Pt.5 S.83 Agency may institute summary proceedings for offences. Fixed payment notices for price display and product pricing offences. 70 [No. 19.] [2007.]Consumer Protection Act 2007. of a further offence on each day that the contravention continues and for each such offence is liable— (a) on summary conviction, to a fine not exceeding \500, and (b) on conviction on indictment, to a fine not exceeding \10,000. (4) On conviction by the court for any offence that is tried sum- marily under subsection (1) other than an offence under section 65(2), the following apply: (a) the accused is liable to the fines and penalties described in section 79(1) (respecting fines and penalties); (b) section 80 (respecting liability for costs and expenses of proceedings and investigation); (c) section 82 (publication of a corrective statement). 84.—Summary proceedings for an offence under this Act, except an offence under section 65(2), may be brought and prosecuted by the Agency. Chapter 5 Fixed Payment Notices 85.—(1) This section applies in respect of any offence under the following enactments (in this section referred to as a “relevant offence”): (a) section 58 (respecting price display regulations); (b) section 22(a) or (b) of the Prices Act 1958 (respecting price display orders); (c) Regulation 4(3), 5(5), 6(3) or 7(2) of the European Com- munities (Requirements to Indicate Product Prices) Regulations 2002 (S.I. No. 639 of 2002). (2) An authorised officer who has reasonable grounds for believ- ing that a person is committing, or has committed, a relevant offence may serve, personally or by post, the notice referred to in subsection (3) on the person. (3) The notice (“fixed payment notice”) shall be in the prescribed form and state— (a) that the person on whom it is served is alleged to have committed the relevant offence concerned, (b) when and where it is alleged to have been committed, (c) that a prosecution for it will not be instituted if, during the period of 28 days beginning on the date of the notice, the person pays the amount of \300 to the Agency (at the address stated in the notice) and submits the original or a copy of the fixed payment notice together with that payment, and [2007.] [No. 19.]Consumer Protection Act 2007. (d) that in default of such payment, the person will be pros- ecuted for the alleged relevant offence. (4) A payment referred to in subsection (3) shall be accompanied by the original or a copy of the fixed payment notice concerned. (5) If a fixed payment notice is served on a person— (a) the person may make a payment in accordance with sub- section (3)(c), (b) the Agency shall receive and retain the payment (subject to subsection (7)) and issue a receipt for it, (c) any payment received shall not be recoverable by the per- son who made it, and (d) a prosecution in respect of the alleged relevant offence to which the notice relates shall not be instituted during the period specified in subsection (3)(c) or, if a payment is made in accordance with subsections (3)(c) and (4), at all. (6) In proceedings against a person for a relevant offence it shall be presumed, until the contrary is shown, that the person did not make payment in accordance with subsections (3)(c) and (4). (7) Payments received by the Agency under this section shall be paid into or disposed of for the benefit of the Exchequer in such manner as the Minister for Finance directs. Chapter 6 Publication of Trader Names (Consumer Protection List) 86.—(1) The Agency shall keep and maintain a list (the “con- sumer protection list”) of names and addresses of the following per- sons, together with a description of their trade, business or profession and the particulars described in subsection (2): (a) any person on whom a fine or other penalty was imposed by a court under the relevant statutory provisions or who was required, by an order under section 81, to pay an amount of money to a consumer; (b) any person against whom an order is made under section 71 (respecting civil relief by way of prohibition orders); (c) any person who gives an undertaking to the Agency under section 73; (d) any person against whom a compliance notice takes effect under section 75(7) or (8) (respecting compliance notices); (e) any person who makes payment to the Agency pursuant to a fixed payment notice under section 85. (2) The consumer protection list shall specify, in relation to each person named in the list, any particulars the Agency considers appro- priate in respect of the following: 71 Pt.5 S.85 Agency may publish information respecting certain persons. Pt.5 S.86 Protections for persons reporting breaches. 72 [No. 19.] [2007.]Consumer Protection Act 2007. (a) the matter occasioning any fine or penalty imposed on the person by the court and the amount or nature of that fine or penalty; (b) the matter occasioning any order made by the court against the person and the nature of that order; (c) the matter occasioning any undertaking given to the Agency by the person under this Act; (d) the matter occasioning any compliance notice served on the person under this Act; (e) the matter occasioning any fixed payment notice under this Act. (3) The Agency may, at any time and in any form or manner the Agency considers appropriate, publish or cause to be published all or any part of the consumer protection list. PART 6 Miscellaneous 87.—(1) A person who, apart from this section, would be so liable shall not be liable in damages in respect of the communication, whether in writing or otherwise, by the person to the Agency of the person’s opinion that— (a) an offence under any of the relevant statutory provisions has been or is being committed, or (b) any of the relevant provisions that prohibits a person from doing a particular thing or things has not been or is not being complied with, unless it is proved that the person has not acted reasonably and in good faith in forming that opinion and communicating it to the Agency. (2) The reference in subsection (1) to liability in damages shall be construed as including a reference to liability to be the subject of an order providing for any other form of relief. (3) An employer shall not penalise an employee for having for- med an opinion of the kind referred to in subsection (1) and com- municated it, whether in writing or otherwise, to the Agency if the employee has acted reasonably and in good faith in forming that opinion and communicating it to the Agency. (4) Schedule 6 shall have effect for the purposes of subsection (3). (5) A person who states to the Agency that a person— (a) has committed or is committing an offence under any of the relevant statutory provisions, or (b) has failed or is failing to comply with any of the relevant statutory provisions, [2007.] [No. 19.]Consumer Protection Act 2007. (b) Charges (Hairdressing Display) Order 1976 (S.I. No. 156 of 1976); (c) Retail Price (Food in Catering Establishments) Display Order 1984 (S.I. No. 213 of 1984); (d) Retail Price (Diesel and Petrol) Display Order 1997 (S.I. No. 178 of 1997); (e) Retail Price (Beverages in Licensed Premises) Display Order 1999 (S.I. No. 263 of 1999). (2) The Minister may by regulation amend or revoke any order referred to in subsection (1). 93.—(1) Despite section 4, the following enactments made under section 11 of the Consumer Information Act 1978 (before its repeal by this Act) remain in force and are deemed to have been made as regulations by the Minister under section 50(2) until any such enact- ment is revoked, substituted by regulation of the Minister under section 50(2) or otherwise ceases to have effect: (a) Consumer Information (Advertisements) (Disclosure of Business Interests) Order 1984 (S.I. No. 168 of 1984); (b) Consumer Information (Advertisements for Concert or Theatre Performances) Order 1997 (S.I. No. 103 of 1997); (c) Consumer Information (Advertisements for Airfares) Order 2000 (S.I. No. 468 of 2000). (2) Section 3(2) does not apply to the enactments referred to in subsection (1)(a) to (c). (3) For certainty, section 26 of the Interpretation Act 2005 applies in respect of the repeal of section 11 of the Consumer Information Act 1978 and its substitution by the provisions of section 50 and, for this purpose, the enactments specified in subsection (1) are conclus- ively deemed to be consistent with and validly enacted under section 50. (4) For certainty, the references in sections 51(2) and 69(1) (in paragraph (b)(iii) of the definition of “contravening advertisement”) to a regulation under section 50(2) include any enactment referred to in subsection (1)(a) to (c). 94.—(1) In this section “Act of 1942” means the Central Bank Act 1942, as amended by, amongst other enactments, the Central Bank and Financial Services Authority of Ireland Act 2003 and the Central Bank and Financial Services Authority of Ireland Act 2004. (2) Section 2(1) of the Act of 1942 is amended by inserting, before the definition of “Appeals Tribunal”, the following: “ ‘Agency’ means the National Consumer Agency established by the Consumer Protection Act 2007;”. (3) Section 5A of the Act of 1942 is amended by inserting the following subsections after subsection (3): 75 Pt.6 S.92 Transitional. Amendment of Central Bank Act 1942. Pt.6 S.94 76 [No. 19.] [2007.]Consumer Protection Act 2007. “(3A) The functions of the Agency specified in subsection (3B) are, in so far as they relate to a financial service provided by a regulated financial service provider, also functions of the Bank and subsections (3C) to (3F) have effect for the purposes of this subsection. (3B) The functions of the Agency referred to in subsection (3A) are the following functions of it under the Consumer Pro- tection Act 2007, namely, functions under— (a) section 8(1), (4), (5) and (6) of that Act in relation to— (i) sections 41 to 56 (other than section 50) of that Act, and (ii) the European Communities (Unfair Terms in Consumer Contracts) Regulations 1995 and 2000 (S.I. No. 27 of 1995 and S.I. No. 307 of 2000), and (b) sections 30, 71, 72, 73, 75, 81, 82, 84, 86, 88 and 90 of that Act. (3C) Subsection (3A) operates to vest in the Bank, concur- rently with the vesting in the Agency of those functions by the Consumer Protection Act 2007, the functions specified in subsec- tion (3B). (3D) Accordingly— (a) the functions so specified are, subject to any relevant co-operation agreement entered into under section 21 of the Consumer Protection Act 2007, capable of being performed by either the Agency or the Bank, and (b) subject to subsection (3F), references to the Agency in the provisions of that Act specified in subsection (3B) are to be read as including references to the Bank and those provisions otherwise apply. (3E) Subject to subsection (3F), sections 80, 85 and 87 of the Consumer Protection Act 2007 apply to the Bank as they apply to the Agency and, accordingly, references to the Agency in those sections are to be read as including references to the Bank. (3F) Where any section of the Consumer Protection Act 2007 specified in subsection (3B) or (3E) provides for anything to be done in relation to the Agency (whether the giving of notice to it, the submitting of a thing to it or the doing of any other thing) then, if a co-operation agreement entered into under section 21 of that Act so specifies, it is sufficient compliance with the section concerned if the thing is done in relation to the Agency or the Bank as is specified in that agreement.”. (4) Section 33S(2) of the Act of 1942 is amended by substituting the following paragraph for paragraph (f): “(f) the Consumer Protection Act 2007; [2007.] [No. 19.]Consumer Protection Act 2007. (g) the European Communities (Unfair Terms in Con- sumer Contracts) Regulations 1995 and 2000 (S.I. No. 27 of 1995 and S.I. No. 307 of 2000); (h) such other enactments and statutory instruments as are specified in the regulations.”. (5) Section 33AK(3) of the Act of 1942 is amended, in paragraph (a), by inserting the following subparagraph after subparagraph (iv): “(iva) the National Consumer Agency, or”. (6) Schedule 2 to the Act of 1942 is amended— (a) in Part 1, by inserting the following item after the item relating to the Investment Funds, Companies and Miscel- laneous Provisions Act 2006: “ No. - of 2007 Consumer Protec- The whole Act tion Act 2007 ”, and (b) in Part 2— (i) by inserting the following item after the item relating to the European Communities (Life Assurance) Framework Regulations 1994 (S.I. No. 360 of 1994): “ S.I. No. 27 of 1995 European Com- The whole instrument munities (Unfair Terms in Con- sumer Contracts) Regulations 1995 ”, and (ii) by inserting the following item after the item relating to the European Communities (Supplementary Supervision of Insurance Undertakings in an Insurance Group) Regulations 1999 (S.I. No. 399 of 1999): “ S.I. No. 307 of European Com- The whole instrument 2000 munities (Unfair Terms in Con- sumer Contracts) (Amendment) Regulations 2000 .”. 95.—Section 6 of the Sale of Goods and Supply of Services Act 1980 is amended by substituting the following subsections for subsec- tion (2): 77 Pt.6 S.94 Amendment of Sale of Goods and Supply of Services Act 1980. Pt.6 S.99 Power of officer of customs and excise to detain unsafe goods. Directions under certain instruments respecting product safety: actions of third parties. 80 [No. 19.] [2007.]Consumer Protection Act 2007. of those words is used is qualified by the word ‘plated’; (d) where the representation is in writing and the word ‘plated’ or ‘rolled’ is used, that word is at least as large as the rest of the representation. (3) Subsection (2) of this section does not apply if the representation is false or is applied to an article for which the representation is inap- propriate. Construction of certain expressions in sections 5 and 6. 6A.—In sections 5 and 6 of this Act, ‘commer- cial practice’, ‘representation’ and ‘trader’ have the same meaning as they have in the Consumer Protection Act 2007.”. 100.—For the purpose of facilitating the performance by the Agency of any functions conferred on it by any of the relevant statu- tory provisions relating to the safety of products, an officer of cus- toms and excise, when authorised to do so by the Revenue Commis- sioners following a written request in that behalf by the Agency, may detain any goods being imported for such period as is reasonably necessary for the Agency to examine the goods, or arrange to have the goods examined, which period shall not in any case exceed 72 hours from the time when the goods concerned are detained. 101.—(1) In this section “relevant direction” means a direction, for the time being in force, given under any of the statutory instru- ments specified in Schedule 7, being a direction— (a) prohibiting the placing on the market of one or more prod- ucts or requiring one or more products to be withdrawn from the market, or (b) imposing restrictions on the placing on the market of one or more products. (2) In this section a reference to a product concerned is a refer- ence to a product to which the relevant direction relates. (3) If a relevant direction is given to a person, being a direction to which subsection (1)(a) applies, any other person who knows of the direction shall not do any of the following things, namely— (a) distribute, (b) sell, (c) offer for sale, (d) supply in the course of providing a service, a product concerned. (4) If a relevant direction is given to a person, being a direction to which subsection (1)(b) applies, any other person who knows of the direction shall not— [2007.] [No. 19.]Consumer Protection Act 2007. (a) in a case where the restriction concerned prohibits the doing of that particular thing in respect of the product — do any particular thing referred to in subsection (3) in respect of a product concerned, or (b) in a case where the restriction concerned does not prohibit the doing of that particular thing in respect of the product — do any particular thing referred to in subsection (3) in respect of a product concerned otherwise than in accord- ance with the terms of the restriction. (5) A person who contravenes subsection (3) or (4) commits an offence and is liable on summary conviction to the fines and penalties provided in Chapter 4 of Part 5. (6) This section is in addition to the provision of any statutory instrument specified in Schedule 7 that creates an offence in respect of a contravention of a direction given under that instrument. 102.—(1) A certificate in writing purporting to be signed by a per- son employed in a relevant laboratory and stating the results of one or more tests carried out in that laboratory with respect to a product of a specified type shall, without proof of the signature of that person or that he or she is employed in the relevant laboratory, be admiss- ible as evidence of the results of the test or tests in the following proceedings taken in relation to that type of product. (2) Those proceedings are proceedings under any of the statutory instruments specified in Schedule 7. (3) In this section ‘relevant laboratory’ means a laboratory the competence of which to carry out tests in relation to products is recognised by an authority performing functions under the laws, regulations or administrative provisions adopted by a Member State for the purposes of any of the Directives specified in Schedule 8. (4) Where a certificate referred to in subsection (1) is produced in proceedings referred to in subsection (2), it shall be presumed, until the contrary is shown, that the laboratory referred to in the certificate as a relevant laboratory is such a laboratory. SCHEDULE 1 Existing Enactments PART 1 Enactments — Acts of the Oireachtas Number and Short Title Year (1) (2) No. 31 of 1964 Pawnbrokers Act 1964 No. 10 of 1970 Merchandise Marks Act 1970 No. 35 of 1979 Occasional Trading Act 1979 No. 16 of 1980 Sale of Goods and Supply of Services Act 1980 81 Pt.6 S.101 Admissibility of certain laboratory tests. Section 2. Sch.1 82 [No. 19.] [2007.]Consumer Protection Act 2007. Number and Short Title Year (1) (2) No. 23 of 1980 Trading Stamps Act 1980 No. 28 of 1991 Liability for Defective Products Act 1991 No. 17 of 1995 Package Holidays and Travel Trade Act 1995 No. 24 of 1995 Consumer Credit Act 1995 No. 28 of 1996 National Standards Authority of Ireland Act 1996 No. 29 of 1998 Food Safety Authority of Ireland Act 1998 PART 2 Enactments made under the European Communities Act 1972 which are existing Enactments Number and Citation Year (1) (2) S.I. No. 134 of European Communities (Misleading Advertising) Regulations 1988 1988 S.I. No. 224 of European Communities (Cancellation of Contracts Negotiated 1989 away from Business Premises) Regulations 1989 S.I. No. 32 of European Communities (Safety of Toys) Regulations 1990 and 1990 1994 S.I. No. 458 of 1994 S.I. No. 265 of European Communities (Food Imitations) (Safety) Order 1991 1991 S.I. No. 101 of European Communities (Appliances Burning Gaseous Fuels) 1992 Regulations 1992 and 1995 S.I. No. 150 of 1995 S.I. No. 428 of European Communities (Low Voltage Electrical Equipment) 1992 Regulations 1992 and 1994 S.I. No. 307 of 1994 S.I. No. 272 of European Communities (Personal Protective Equipment) 1993 Regulations 1993 to 1997 S.I. No. 13 of 1994 S.I. No. 457 of 1994 S.I. No. 81 of 1997 S.I. No. 27 of European Communities (Unfair Terms in Consumer Contracts) 1995 Regulations 1995 and 2000 S.I. No. 307 of 2000 S.I. No. 63 of European Communities (Labelling of Footwear) Regulations 1996 1996 S.I. No. 204 of European Communities (Contracts for Time Sharing of 1997 Immovable Property – Protection of Purchasers) Regulations 1997 S.I. No. 144 of European Communities (Contracts for Time Sharing of 2000 Immovable Property – Protection for Purchasers) (Amendment) Regulations 2000 S.I. No. 245 of European Communities (Names and Labelling of Textile 1998 Products) Regulations 1998 [2007.] [No. 19.]Consumer Protection Act 2007. SCHEDULE 3 References in Certain Acts and Instruments to Director or Office of Director PART 1 References in Certain Acts to Director of Consumer Affairs or Office of the Director of Consumer Affairs Short Title, Number Provision affected Amendment and Year (1) (2) (3) Ombudsman Act 1980 First Schedule In Part II, delete “the (No. 26 of 1980) Director of Consumer Affairs”. Second Schedule Insert “National Consumer Agency”. National Archives Act Schedule Substitute “National 1986 (No. 11 of 1986) Consumer Agency” for “Office of the Director of Consumer Affairs”. Prompt Payment of Schedule Substitute “National Accounts Act 1997 Consumer Agency” for “the (No. 31 of 1997) Office of the Director of Consumer Affairs”. Taxes Consolidation Schedule 13 Substitute the following for Act 1997 (No. 39 of paragraph 112 (inserted by 1997) section 14 of the Finance Act 2001): “112. National Consumer Agency.”. Electronic Commerce Section 15 Substitute “role of the Act 2000 (No. 27 of National Consumer Agency” 2000) for “role of the Director of Consumer Affairs”. Competition Act 2002 Schedule 1 (as In column (1), substitute (No. 14 of 2002) amended by the “National Consumer Agency” Competition Act 2002 for “Director of Consumer (Section 34(11)) Affairs”. (Director of Consumer Affairs) Order 2003 (S.I. No. 130 of 2003) Ombudsman for Schedule 1 In Part 2, substitute “National Children Act 2002 Consumer Agency” for (No. 22 of 2002) “Director of Consumer Affairs”. Personal Injuries Section 56(6) Substitute “the chief executive Assessment Board Act of the National Consumer 2003 (No. 46 of 2003) Agency” for “the Director of Consumer Affairs”. Official Languages First Schedule (a) in paragraph 1 of the Irish Act 2003 (No. 32 of text— 2003) (i) in subparagraph (1), delete “Oifig an Stiúrthóra Gnóthaı́ Tomhaltóirı́”, and (ii) in subparagraph (2), insert “An Ghnı́omhaireacht Náisiúnta Tomhaltóirı́”. 85 Section 40. Sch.3 86 [No. 19.] [2007.]Consumer Protection Act 2007. Short Title, Number Provision affected Amendment and Year (1) (2) (3) (b) in paragraph 1 of the English text— (i) in subparagraph (1), delete “Office of the Director of Consumer Affairs”, and (ii) in subparagraph (2), insert “National Consumer Agency”. Veterinary Practice Section 16(1) Substitute the following for Act 2005 (No. 22 of paragraph (g): 2005) “(g) one person who is nominated for such appointment by the National Consumer Agency;”. PART 2 References in Certain Instruments to Director of Consumer Affairs or Office of the Director of Consumer Affairs Citation, Number and Provision affected Amendment Year (1) (2) (3) Air Quality Standards Schedule 14 Substitute the following for Regulations 2002 (S.I. paragraph (6): No. 271 of 2002) “(6) National Consumer Agency”. Genetically Modified Regulation 62(1) (a) Substitute the following Organisms (Deliberate for paragraph (g): Release) Regulations “(g) the National Consumer2003 (S.I. No. 500 of Agency,”.2003) (b) In paragraph (j), substitute “the National Consumer Agency” for “the Office of the Director of Consumer Affairs”. Ozone in Ambient Air Schedule 10 Substitute the following for Regulations 2004 (S.I. paragraph (6): No. 53 of 2004) “(6) National Consumer Agency”. Investor Regulation 2 Substitute the following for Compensation Act paragraph (b): 1998 (Section 18(4)) “(b) the National Consumer(Prescription of Agency;”.Bodies and Individuals) Regulations 2004 (S.I. No. 570 of 2004) Finance Act 1993 Schedule Substitute “National (Section 60) Consumer Agency” for Regulations 2005 (S.I. “Office of the Director of No. 846 of 2005) Consumer Affairs”. [2007.] [No. 19.]Consumer Protection Act 2007. SCHEDULE 4 Enactments for the purpose of section 73 (Undertakings with the Agency) Number and Year Short Title or Citation (1) (2) No. 16 of 1980 Sale of Goods and Supply of Services Act 1980 No. 17 of 1995 Package Holidays and Travel Trade Act 1995 S.I. No. 224 of 1989 European Communities (Cancellation of Contracts Negotiated away from Business Premises) Regulations 1989 S.I. No. 27 of 1995 European Communities (Unfair Terms in Consumer S.I. No. 307 of 2000 Contracts) Regulations 1995 and 2000 S.I. No. 204 of 1997 European Communities (Contracts for Time Sharing of Immovable Property – Protection of Purchasers) Regulations 1997 S.I. No. 144 of 2000 European Communities (Contracts for Time Sharing of Immovable Property – Protection of Purchasers) (Amendment) Regulations 2000 S.I. No. 207 of 2001 European Communities (Protection of Consumers in Respect of Contracts Made by Means of Distance Communication) Regulations 2001 S.I. No. 639 of 2002 European Communities (Requirements to Indicate Product Prices) Regulations 2002 S.I. No. 11 of 2003 European Communities (Sale of Consumer Goods and Associated Guarantees) Regulations 2003 S.I. No. 68 of 2003 European Communities (Directive 2000/31/EC) Regulations 2003 S.I. No. 490 of 2004 European Communities (Amendment of S.I. No. 68 of 2003) Regulations 2004 SCHEDULE 5 Enactments for the purpose of section 75 (Compliance notices) Number and Year Short Title or Citation (1) (2) No. 16 of 1980 Sale of Goods and Supply of Services Act 1980 No. 17 of 1995 Package Holidays and Travel Trade Act 1995 S.I. No. 168 of 1984 Consumer Information (Advertisements) (Disclosure of Business Interest) Order 1984 S.I. No. 224 of 1989 European Communities (Cancellation of Contracts Negotiated away from Business Premises) Regulations 1989 S.I. No. 103 of 1997 Consumer Information (Advertisements for Concert or Theatre Performances) Order 1997 S.I. No. 204 of 1997 European Communities (Contracts for Time Sharing of Immovable Property – Protection of Purchasers) Regulations 1997 S. I. No. 144 of 2000 European Communities (Contracts for Time Sharing of Immovable Property – Protection of Purchasers) (Amendment) Regulations 2000 S.I. No. 468 of 2000 Consumer Information (Advertisements for Airfares) Order 2000 87 Section 73. Section 75.