Consumer law post Brexit – where are we now?

Posted on 14 December 2018

Consumer law post Brexit – where are we now?

With just under 4 months until the UK leaves the European Union, and subject to any agreement being reached with the EU, which may include a transitional period, the Government has laid before Parliament Regulations to amend current consumer protection laws in the UK (the  Consumer Protection (Amendment etc.) (EU Exit) Regulations 2018).

The Regulations make amendments to consumer protection legislation in the UK post-Brexit and will apply in the event of a 'No Deal' scenario to remove references to EU focussed areas of law (and narrow them to just the UK). Whilst the Regulations aim to ensure that existing legislation designed for consumer protection continues to operate effectively, once the UK leaves the EU, many rights that consumers have taken for granted will be restricted to the UK only, as goods imported from the EU will be treated as if they have been imported from a non-EEA state.

Some of the key changes that the government is proposing to make are summarised below. Whilst the changes may appear minor in themselves, the impact on UK consumers is the loss of reciprocal rights across the EEA and potential increases in payment surcharges when purchasing goods, services and digital content from the EU. On the basis of the Regulations, purchases from the EU will be treated as if they have been made from any third party country reducing the protection for UK consumers when shopping online with EU traders.

For some UK based traders, however, the impact of the changes may be relatively minor. For those traders who operate a pan-European business, the restrictions placed on the UK consumer laws are unlikely to make a significant change to the way they operate their business after Brexit, as compliance with the EU legislation will still be required.

Statute

Current Law

Proposed Change

Consumer Rights Act 2015 ("CRA")

 

Sales governed by the laws of a non-EEA state may be protected by certain provisions under the CRA if they have a close connection to the UK, section 32.

Contracts governed by the laws of an EEA state will only be protected by certain CRA provisions if they have a close connection to the UK. They will be treated the same way as non-EEA states have been treated under current law.

All contractual terms that reflect international conventions (to which the EU is a party) are excluded from protection against unfair terms, section 32.

This law will still apply but only in relation to international conventions that the UK is still a party to, as opposed to through its membership of the EU.

Any statements made by importers of goods or digital content into the EEA are relevant in determining satisfactory quality, section 9 and section 59.

Only statements made by an importer of goods or digital content into the UK will be relevant.

Consumer Protection from Unfair Trading Regulations 2008

 

The consumer has a right to redress where an importer into the EEA engages in prohibited practices.

Consumers will now only have a right to redress in relation to goods imported into the UK, regulation 27.

Currently where a trader provides an after sales service it must not communicate in a language to the consumer that is not an official language of the EEA state that it is located in.

If it does, it should make clear where the after sales service will be provided and avoid creating a false impression that the service will be provided in another EEA state.

The language and service location requirements will continue paragraph 8, Schedule 1 and paragraph 23, Schedule 1.

Consumer Rights (Payment Surcharges) Regulations 2012

Prohibit traders from imposing additional charges for the use of specific payment methods in the EEA.

Post Brexit these protections will only apply to situations where a trader or payment service provider is located in the UK.

Alternative Dispute Resolution for Consumer Disputes (Competent Authorities and Information) Regulations 2015 ("ADR")

 

Secretary of State is required to send a list of ADR entities to the European Commission.

 

 

The Secretary of State shall be required to publish a list of ADR entities in the UK only regulation 14, ADR.

 

UK authorities must make available to consumers a list of ADR entities (published by the European Commission) within the EU.

 

This requirement has been removed, regulation 14, ADR.

ADR entities should offer cross-border dispute resolution.

The requirement to offer cross-border dispute resolution will be removed in its entirety, regulation 14, ADR.

 

Regulation (EU) 524/2013 on online dispute resolution ("ODR") for consumer disputes

The ODR is an online platform that offers an impartial dispute resolution mechanism between consumers and traders for purchases online. Its inclusion is a mandatory requirement for all traders that offer goods and services online within the EU.

The ODR will be revoked and UK online traders will no longer be required to provide consumers with information about the tool.

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