STATUTORY INSTRUMENT

S.I. No. 63 of 2005

EUROPEAN COMMUNITIES (DISTANCE MARKETING OF CONSUMER FINANCIAL SERVICES) (AMENDMENT) REGULATIONS 2005

S.I. No. 63 of 2005

European Communities (Distance Marketing of Consumer Financial Services) (Amendment) Regulations 2005

I, Brian Cowen, Minister for Finance, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 ( No. 27 of 1972 ), and for the purpose of giving further effect to Directive 2002/65/EC of the European Parliament and of the Council of 23 September 2002¹ , hereby make the following regulations:

1.         (1)     These Regulations may be cited as the European Communities (Distance Marketing of Consumer Financial Services) (Amendment) Regulations 2005.

(2)           These Regulations come into operation on 15 February 2005.

2.         The European Communities (Distance Marketing of Consumer Financial Services) Regulations 2004 ( S.I. No. 853 of 2004 ) are amended--

(a)      in Regulation 3-

(i)         by substituting the following for the definition of “agent”:

“‘agent’ includes nominee;”,

and

(ii)        by inserting the following after paragraph (5):

“(6) Where an intermediary acts between a consumer and a supplier of a financial service, then there is a distance contract for the supply of a financial service but only if, treating the intermediary as the supplier, there would have been a distance contract.”,

(b)      in Regulation 6 by substituting the following for paragraph (6):

“(6)(a)  Subject to subparagraph (b), a distance contract for the supply of a financial service is not enforceable against the consumer if the supplier has failed to comply with an obligation imposed on the supplier by this Regulation.

(b)   Where a court of competent jurisdiction is satisfied that--

(i)           the failure to comply with an obligation imposed on the supplier by this Regulation was not deliberate and has not prejudiced the consumer, and

(ii)          it would be just and equitable in the circumstances to dispense with the obligation,

then, the court may, subject to any conditions that it sees fit to impose, decide that the agreement shall be enforceable.”,

(c)      in Regulation 9 by substituting the following for paragraph (5):

“(5)(a)  Subject to subparagraph (b), a distance contract for the supply of a financial service is not enforceable against the consumer if the supplier has failed to comply with an obligation imposed on the supplier by this Regulation.

(b)   Where a court of competent jurisdiction is satisfied that--

(i)           the failure to comply with an obligation imposed on the supplier by this Regulation was not deliberate and has not prejudiced the consumer, and

(ii)          it would be just and equitable in the circumstances to dispense with the obligation,

then, the court may, subject to any conditions that it sees fit to impose, decide that the agreement shall be enforceable.”,

(d)      in Regulation 29--

(i)      by substituting the following for paragraphs (1) and (2):

“(1)     The contract between the provider of a payment card and the consumer relating to the payment card shall be deemed to provide--

(a)          for relevant payments to be recredited or returned to the consumer whenever the card is used fraudulently in connection with a distance contract for the supply of a financial service, and

(b)          for the consumer not to be liable for a payment to which subparagraph (a) relates after the consumer has informed the card provider of the loss, theft or misappropriation of the card.

(2)   The provider of a payment card shall ensure that facilities are available to enable the consumer--

(a)          to request cancellation of a payment to which paragraph (1) applies, and

(b)          to immediately notify the provider if the card is lost, stolen or misappropriated. ”,

and

(ii)     by substituting the following for paragraph (4):

“(4)    If, in any proceedings in relation to a payment to which paragraph (1) applies, the consumer alleges that the consumer's payment card has been used without the consumer's authorisation, the onus is on the provider of the card to prove that the consumer authorised its use.”,

and

(e)      in Schedule 2 by substituting “verify it;” for “verify it.” in subparagraph (c) and by substituting the following for subparagraph (d):

“(d)    notice of the possibility that other taxes or costs may exist that are neither paid by the supplier nor imposed by the supplier;”.

Explanatory Note

(This note is not part of the Instrument and does not purport to be a legal interpretation).

The purpose of these Regulations is to amend the European Communities (Distance Marketing of Consumer Financial Services) Regulations 2004. The amendments clarify the application of the original Regulations in relation to services provided by intermediaries, the enforceability of contracts to which the Regulations apply and the fraudulent use of payment cards in connection with distant contracts for financial services.

The 2004 Regulations give effect to the main provisions of Directive 2002/65/EC of the European Parliament and of the Council of 23 September 2002 concerning the distance marketing of consumer financial services and amending Council Directive 90/619/EEC and Directives 97/7/EC and 98/27/EC. They apply to the marketing and supply of financial services to consumers under organised distance marketing schemes.

¹ OJ No. L271 of 9 October 2003, p. 16.